Mr Christopher Ross v Australian Postal Corporation
[2024] FWC 802
•28 MARCH 2024
| [2024] FWC 802 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Christopher Ross
v
Australian Postal Corporation
(C2024/1796)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 28 MARCH 2024 |
Appeal against procedural decisions of Commissioner Harper-Greenwell on 13 March 2024, 18 March 2024 and 21 March 2024 in matter C2024/962 – stay application – application refused.
This decision concerns an application for a stay order by Mr Christopher Ross pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against procedural decisions of Commissioner Harper-Greenwell which were made on 13 March, 18 March and 21 March 2024. The respondent to the appeal is Australian Postal Corporation trading as Australia Post.
The Commissioner’s decisions were made in the context of dealing with Mr Ross’ general protections application, which Mr Ross filed in the Commission on 16 February 2024.
Australia Post advised that it does not object to the proposed grant of a stay while the application for permission to appeal is determined. Nevertheless, it remains for the Commission to decide whether to exercise its discretion to grant a stay. In the circumstances, I advised the parties of my view that the stay application could be determined on the papers[1] and provided a facility for the filing of written submissions.
Procedural history
On 27 February 2024, Australia Post filed a Form F8A response to Mr Ross’ general protections application. Australia Post objected to the application on the basis that it was not filed within 21 days after Mr Ross’ dismissal took effect on 8 January 2024.
On 6 March 2024, the Commissioner listed the application for Mention/Directions Hearing – jurisdiction only (extension of time) to proceed on 13 March 2024. Despite confirming his attendance at the Mention/Directions Hearing by email dated 6 March 2024, on 8 March 2024 Mr Ross made an application “for Stay of Proceeding” pursuant to s 589 of the Act.
On 12 March 2024, the Commissioner’s chambers emailed the parties confirming that the Mention/Directions Hearing remained listed and set out the manner in which an adjournment request could be made. The email advised, amongst other things, of the requirement for such applications to be made with supporting reasons and documentation for the Commissioner to consider.
On 13 March 2024, Mr Ross sent an email to the Commissioner’s chambers in which he sought a two-week adjournment of the Mention/Directions Hearing to allow sufficient time for him to “submit a proper Leave or Stay application.” Mr Ross sent a further email attaching submissions in support of his request, as well as a copy of an originating application dated 10 March 2024 in the Supreme Court of Victoria, which identifies Mr Ross as the plaintiff, and a summons for the responding parties to appear. Australia Post is not a party to those proceedings.
It appears that the Mention/Directions Hearing before the Commissioner proceeded as listed on 13 March 2024. Shortly thereafter, the Commissioner’s chambers sent an email to the parties attaching three documents; the Commissioner’s Directions dated 13 March 2024, a copy of the Applicant’s outline of argument – extension of time and a copy of the Respondent’s outline of argument – extension of time. Pursuant to the Directions Mr Ross is required, by Order 3A, to file in the Commission and serve upon Australia Post his outline of argument in respect of the issue of extension of time by 5:00pm AEDT on Friday 29 March 2024.
The email advised the parties that Mr Ross’ application would proceed to an in-person jurisdictional hearing (extension of time) before the Commissioner on 9 April 2024. Mr Ross was provided with an urgent referral to the Workplace Advisory Service and the email explained the steps required of Mr Ross to avail himself of this opportunity.
On 18 March 2024, Mr Ross sent an email to the Commission seeking three orders; an order for a VCAT mental health assessment; an extended leave order to allow “to have heard proceedings that this proceeding is contingent on” and a reference to applications having been filed in various Federal and State courts; and a permanent stay order or an extended leave order to enable Mr Ross to obtain legal representation and have the VCAT assessment attended to.
On 18 March 2024, the Commissioner issued a decision, which was communicated to the parties by email from chambers. The email relevantly advised as follows:
Chambers refers to the below correspondence on 18 March 2024. The Commissioner has considered the requests by the Applicant and declines to grant the orders sought and provides the following.
The Applicant requests the Commission issue an order for a VCAT mental health assessment. The Commissioner notes that the Fair Work Commission does not have the jurisdiction to grant the first order requested by the Applicant.
It appears the Applicant is making a request to have the matter held in abeyance pending the outcome of Applications made to the Supreme Court of Victoria, Supreme Court of New South Wales and The Federal Court of Australia. The Commissioner considers that there is insufficient information pertaining to this request that would persuade her to grant the request. Further the Commissioner notes that parties may represent themselves before the Commission. Permission for representation before the Commission is not automatically granted and should parties choose to engage a legal representative, the representative must request permission to take part in a conference or hearing. Mr Ross may bring a support person such as family member, which may be of assistance if he has been unable to engage a legal representative. Mr Ross may also wish to consider the following information available on the Commissions website: If you decide to represent yourself | Fair Work Commission (fwc.gov.au)
The Applicant also requests that the Commissioner make a Stay Order, the Commissioner notes that no decision has been made by this Commission in this matter (C2024/962), therefore it is unclear what the order sought pertains to.
The Commissioner has formed the view that in the absence of further particulars the directions and listing for hearing (jurisdiction only - extension of time) at 9:00am AEST on Tuesday, 9 April 2024 are retained.
On 19 March 2024, Mr Ross sent further emails to the Commission seeking as follows: “(1) Leave of this proceeding; (2) Stay of Execution order of this proceeding, and from the trial. Permanent Stay order at present; (3) Permanent Adjournment Order.” The submission was accompanied by a series of applications purportedly made by Mr Ross in the Federal Court of Australia and the Supreme Court, although Australia Post is not a named defendant to these proceedings. Mr Ross submitted that there was no detriment to Australia Post in a leave or stay order being made in relation to the proceedings before the Commissioner.
On 21 March 2024, the Commissioner’s chambers sent a response to the parties, relevantly determining as follows:
The Commissioner has considered the further material filed and is presently not persuaded that the matter cannot proceed, and refers to the earlier email dated 18 March 2024.
The directions and listing for hearing (jurisdiction only - extension of time) at 9:00am AEST on Tuesday, 9 April 2024 are retained (as attached).
Mr Ross filed his Form F7 Notice of Appeal in the Commission the following day.
In his Notice of Appeal, Mr Ross seeks that “the trial listed for 9 April 2024 be stayed” and that “the orders set on 13 March 2024 be stayed; this includes the first order, Order A, that by no later than 5pm AEDT on Friday 29 March 2024, I file and serve my Applicants Outline of Argument: Extension of Time” (stay application). This decision considers Mr Ross’ stay application.
The respective contentions
Mr Ross identifies three decisions made by the Commissioner that he seeks permission to appeal:
(1) The decision to dismiss the stay application, adjournment application and leave application that Mr Ross made prior to and on 13 March 2024.
(2) The 13 March 2024 decision to set a timeframe for the proceeding.
(3) The decision to refuse Mr Ross’ application for adjournment, leave and stay order for:
1. This proceeding.
2. Order A, made on 13 March 2024.
3. The trial listed for 9 April 2024.
I discern from Mr Ross’s Notice of Appeal that two primary appeal grounds are advanced, each containing a series of sub-issues. In summary, by ground one Mr Ross contends that the Commissioner’s decisions are affected by errors of law including by being unreasonable and not taking into account the evidence pertaining to the various other proceedings Mr Ross has made which raise issues of a constitutional nature and are contingent proceedings to Mr Ross’ general protections application. By ground two, Mr Ross contends that the Commissioner made an error of fact because the evidence before her supported a different result.
In support of his application for a stay order, Mr Ross submits as follows:[2]
I believe my application for a substantive adjournment and/or leave and/or stay for the orders made by Commissioner Harper- Greenwell is valid, meritted, and has real and reasonable prospects of success.
I believe the lawful course of action to follow is to have this appeal application heard first, and appropriately; for this to occur, a stay order is needed because the orders set by Commissioner Harper-Greenwell are occurring in a very short period of time.
Furthermore, it is regrettable for this delay. I wish this was not the case. I believe the detriment to the Respondent is not considerable.
Mr Ross sought leave to make further submissions after the filing date for submissions had closed. I exercised my discretion to accept these submissions and have taken them into consideration:[3]
I have submitted an Originating Document/Application with the Federal Court of Australia for a Form 69 application: Originating application for relief under section 39B Judiciary Act 1903.
I submit that this proceeding before the FWC is contingent on this Federal Court of Australia application, the Form 69 application.
I submit that the reasoning and law pertaining to s39B(1E) Judiciary Act 1903 (which is a permanent stay order for a criminal proceeding) should apply to this stay application and thus a stay application should be granted, both: 1) now for the appeal of the orders set by C HG to occur with a stay order made so the orders due on 29/03/2024 are stayed, and the trial date of 9/04/2024 is stayed; and 2) for the eventual stay application that I seek to be made that is before this F7 Notice of Appeal decision maker.
And further:
I have submitted an Originating Document/Application with the Federal Court of Australia for a Form 68 application: Notice of a Constitutional Matter pursuant to s78B of the Judiciary Act 1903.
I submit that this proceeding before the FWC is contingent on this Federal Court of Australia application, the Form 18 application.
I submit that a stay order is lawfully to be made pursuant to s78B(1) Judiciary Act 1903:
Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
As earlier stated, Australia Post advised that it does not object to the proposed grant of a stay pending determination of the application for permission to appeal. Nevertheless, it remains for the Commission to determine the stay application.
Relevant principles
Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:
If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
In deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case, with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[4] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[5] Accordingly, both “elements” are necessary conditions to the grant of a stay.
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is necessarily a preliminary assessment only.
Consideration
By his Notice of Appeal, Mr Ross is seeking a stay of both the 13 March 2024 Directions and the 9 April 2024 hearing. In effect, Mr Ross seeks a stay of the proceedings before the Commissioner pending the hearing and determination of his appeal by the Full Bench.
I do not consider that the stay orders sought by Mr Ross should be made. Consistent with the views of Vice President Hatcher (now Justice Hatcher, President of the Commission) in CFMEU v Collinsville Coal Operations Pty Limited,[6] I am not satisfied that s 606(1) of the Act empowers the Commission to stay the proceedings before the Commissioner pending the hearing and determination of the appeal. I consider the issuance of the Directions and the setting of a hearing date to be administrative matters as opposed to operative decisions capable of being stayed under s 606(1).
Even if the proceedings before the Commissioner are capable of being stayed pursuant to s 606(1) of the Act, I am not persuaded that Mr Ross has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.
The decisions of the Commissioner that are challenged by Mr Ross in the Notice of Appeal are in the nature of procedural rulings. I do not consider that there is an arguable case, with some reasonable prospect of success, that permission to appeal will be granted in respect of Mr Ross’ application for review of those decisions. As the Full Bench of the Commission in Comsec Trading Ltd and Others v Finance Sector Union of Australia[7] noted, it is in the public interest to discourage appeals from preliminary or procedural rulings. The Full Bench observed the distinction that is to be drawn between an exercise of discretion on a point of practice or procedure (as is the case here) and an exercise of discretion which determines substantive rights.[8] It is recognised that permitting appeals against preliminary or procedural rulings may prolong the proceedings overall and given the number of procedural rulings which occur, the possibility of a multiplicity of appeals is to be guarded against.
Further, procedural rulings may be altered later in the case. Accordingly, until the final determination has been made it may not be possible to discern whether an appealable error has occurred. The party aggrieved by a procedural decision might ultimately be successful in the proceedings overall. In such a case any earlier appeal in relation to a procedural decision would be rendered futile.[9]
As I am not satisfied that Mr Ross has an arguable case with some reasonable prospects of success both in respect of permission to appeal and the substantive merits of the appeal, the application for a stay cannot succeed. It is therefore unnecessary to consider the balance of convenience in detail. However, I record my view that I do not consider that the balance of convenience would favour a stay order being made.
The grant of a stay as sought by Mr Ross would prevent the Commissioner from hearing and determining Mr Ross’ extension of time application until after the Full Bench issues a decision in the present appeal. If Mr Ross’ application for permission to appeal is unsuccessful, the matter would revert to the Commissioner to hear the application for an extension of time, with the possibility of a further appeal later being made by Mr Ross if an extension of time is not granted. I consider that a delay of this nature in the determination of an application for an extension of time arising from a dismissal that took effect on 8 January 2024 to be inappropriate, where a more efficient course as described below is available.
In the counterfactual scenario, where a stay is not granted, Mr Ross may be successful in obtaining an extension of time at the hearing before the Commissioner on 9 April 2024. If so, there would seemingly be no ongoing utility in the present appeal because the Commissioner’s procedural decisions would not have deprived Mr Ross of the opportunity for a successful result.
Alternatively, Mr Ross may be unsuccessful in obtaining an extension of time for the making of his general protections application. It would be open to Mr Ross to appeal that extension of time decision. Assuming the Commissioner’s decision, and any arising appeal is made prior to May 2024 when Mr Ross’ present appeal application will likely be listed for hearing, the Full Bench could hear and determine in a single hearing all of the issues that Mr Ross may wish to raise concerning his application for an extension of time. This could occur with the benefit of the Commissioner’s reasons for decision. As part of this process, it would be open to Mr Ross to challenge the Commissioner’s procedural rulings which he contends affected the final result as it relates to an extension of time.[10] The capacity to address all of Mr Ross’ concerns efficiently in this way avoids the possibility of a multiplicity of appeals and therefore favours the stay being refused.
Taking into account these matters, I consider that the balance of convenience would decisively favour the refusal of the stay application.
Finally, I note that Mr Ross’ supplementary submission[11] refers to an “eventual stay application” to be made in respect of the “F7 Notice of Appeal decision maker.” No such application appears to have yet been made by Mr Ross. It follows that this is not a matter that bears upon the conclusions I have reached in this decision on the material before me. In the event that Mr Ross makes such an application, it will be the subject of separate consideration.
Order and disposition
For the reasons given, the application for a stay order in Mr Ross’ Notice of Appeal is refused.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s 593(1)
[2] Mr Ross’ submissions in support of the stay application, dated 26 March 2024
[3] Mr Ross’ submissions in support of the stay application, dated 27 March 2024
[4] Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 786
[5] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]
[6] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]
[7] Comsec Trading Limited and Others v Finance Sector Union of Australia, PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C (Comsec)
[8] See In re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323
[9] Comsec at [35]
[10] See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority [2013] FWCFB 8165 at [19]
[11] See [19] of this decision
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