Mr Scott Nigel Tracey v BP Refinery (Kwinana) Pty Ltd
[2023] FWCFB 74
•18 APRIL 2023
| [2023] FWCFB 74 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2023/1177)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 18 APRIL 2023 |
Appeal against decision [2023] FWC 281 of Deputy President Binet at Perth on 10 February 2023 in matter number C2020/8999
Introduction and background
Mr Scott Tracey has lodged an appeal, for which permission is required, against a decision[1] of Deputy President Binet on 10 February 2023. The matter was the subject of a hearing before us on the question of whether permission to appeal should be granted on 17 April 2023. At the conclusion of the hearing, we issued our decision in relation to the matter. We determined that permission to appeal was refused, and stated that we would provide our reasons in due course. Our reasons for the refusal of permission are set out below.
In the decision under appeal, the Deputy President granted BP Refinery (Kwinana) Pty Ltd (BP Refinery) permission to be legally represented at a hearing in relation to a recusal application made by Mr Tracey in relation to his application lodged on 15 December 2020 for the Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (Cth) (FW Act).
The lengthy procedural history of Mr Tracey’s initial application is set out in detail in the Deputy President’s decision.[2] Relevantly for this appeal, the Deputy President dismissed Mr Tracey’s s 739 application in a decision dated 19 July 2022.[3] Mr Tracey appealed that decision. His appeal was granted by a Full Bench of the Commission and the s 739 application was remitted to the Deputy President for determination on 22 November 2022.[4] Mr Tracey then made an application that the Deputy President recuse herself from determining the application. Pursuant to directions made for the hearing of the recusal application, BP Refinery sought permission to be represented by a lawyer at the hearing. This was opposed by Mr Tracey. The Deputy President held a hearing to determine the question of legal representation on 3 February 2023 (Representation Hearing).
In the decision under appeal, the Deputy President determined to grant BP Refinery permission for legal representation pursuant to s 596(2)(a) of the FW Act. The Deputy President stated that she was satisfied that the issues to be considered at the hearing of Mr Tracey’s recusal application would be complex and require consideration of legal principles.[5] The Deputy President did not accept that BP Refinery sought leave to be legally represented as a matter of convenience, and accepted evidence that BP Refinery’s internal legal practitioners were not experienced in proceedings before the Commission.[6] She noted that BP Refinery’s current legal representatives had represented it throughout this matter and related matters.[7] Given the volume and complexity of the submissions, evidence and authorities the Deputy President was satisfied that the involvement of BP Refinery’s legal representatives would enable the matter to proceed more efficiently than if it had to rely on its own employees to conduct the hearing in the recusal application.[8] The Deputy President rejected ‘very serious’ allegations made about the previous conduct of BP Refinery’s legal representatives. The Deputy President was not satisfied that allowing BP Refinery to be legally represented would result in a more complex or lengthy hearing, and considered that it may assist in Mr Tracey having ‘a fairer opportunity…to ventilate his claims’.[9]
The Deputy President concluded that she was satisfied that the requirements in s 596(2)(a) of the FW Act had been met and considered it appropriate to exercise the discretion to grant leave for BP Refinery to be represented by a lawyer at the hearing of the recusal application on the basis that it would enable the matter to be dealt with more efficiently, taking into account its complexity.[10]
Appeal grounds and submissions
Mr Tracey’s amended notice of appeal contains four appeal grounds:
1.The Deputy President erred in allowing BP Refinery to be legally represented at the Representation Hearing without having made a separate decision to grant BP Refinery permission for legal representation pursuant to s 596 of the FW Act.
2.The Deputy President erred by failing to perform her functions and exercise her powers in a fair, just, open and transparent manner taking into account the objects and other provisions of the FW Act, thereby denying Mr Tracey natural justice.
3.The Deputy President erred in that her decision was inconsistent with, and contrary to other Commission decisions and lines of authority that deal with granting permission for a party to be legally represented pursuant to s 596 of the FW Act.
4.The Deputy President erred in that the decision was plainly unreasonable or plainly unjust by reason of Mr Tracey’s appeal grounds.
In his notice of appeal Mr Tracey contended that permission to appeal was in the public interest and should be granted for the following reasons:
1.Mr Tracey was denied procedural fairness and the decision at first instance manifests an injustice or the result is counterintuitive.
2.The legal principles applied by the Commission were disharmonious when compared with other decisions dealing with similar matters.
3.The decision is attended with sufficient doubt to warrant its reconsideration or a substantial injustice may result if permission is refused.
4.The decision is attended with error, including jurisdictional error.
5.The appeal raises important questions of principle and general application about the nature and form of evidence that can be considered by the Commission and the weight that should be applied to it in determining applications under s 596 of the FW Act.
6.The appeal raises important questions of principle and general application about the Commission’s ability to consider the capacity or personal dimensions of any particular lawyer or paid agent and/or that person’s relationship to the matter or any complexity therein, when first considering if any of the requirements of s 596(2)(a) to (c) of the FW Act have been met.
Mr Tracey filed written submissions in relation to permission to appeal on 5 April 2023. In his submissions Mr Tracey repeated his appeal grounds and grouped them thematically into categories described as ‘evidence’, ‘irrelevant matters/wrong principles’ and ‘submissions & reasons’. He submitted that:
·the Deputy President’s statements in the decision did not accurately match the evidence, were contradictory, failed to take into account concessions made by BP Refinery’s lawyers as well as evidence from previous decisions in the matter and failed to place the appropriate weight on Mr Lynch’s evidence in light of his cross-examination;
·the Deputy President took into account irrelevant matters and wrong principles in relation to s 596 including the capacity and characteristics of BP Refinery’s legal representatives and its internal circumstances, material Mr Tracey had filed in other proceedings unrelated to his recusal application, issues of convenience and preference rather than efficiency and the obligations of legal practitioners to the Commission; and
·the Deputy President failed to engage with Mr Tracey’s submissions about BP Refinery’s in-house counsel and failed to give adequate reasons in support of finding that material he filed in relation to the recusal application was complex.
Mr Tracey submitted that permission to appeal should be granted for a number of reasons, including:
·it is in the public interest to ensure public confidence in the administration of justice is preserved;
·Mr Tracey has been denied procedural fairness;
·the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters;
·the decision is attended with sufficient doubt as to warrant its reconsideration and contains error including jurisdictional error; and
·the appeal raises important questions about the exercise of the Commission’s discretion under s 596 of the FW Act and raises questions of principle and general application about the extent to which the relationship of a lawyer or paid agent to a matter can be considered in the context of s 596.
In his oral submissions, Mr Tracey elaborated on his first ground of appeal. He submitted that the Deputy President had allowed BP Refinery to be legally represented at the hearing concerning whether BP Refinery should be granted permission to be legally represented at the hearing of the recusal application without first granting permission under s 596, and that this constituted a fundamental error and a denial of procedural fairness.
Consideration
We are not satisfied that it is in the public interest to grant permission to appeal such as to require permission to be granted under s 604(2) of the FW Act, nor do we consider that permission should be granted on discretionary grounds. First, the principles applicable to the consideration of the grant of permission for legal representation under s 596 are well-established.[11] Mr Tracey’s appeal raises no issue in respect of the interpretation or application of s 596 which we consider requires Full Bench determination. In a fully-reasoned decision, the Deputy President applied the established principles in an orthodox way.
Second, Mr Tracey does not in his appeal grounds challenge, and in any event we agree with, the Deputy President’s conclusion in paragraph [55] of her decision as follows:
[55] I do not accept that the issues to be determined at the Recusal Hearing are simple or straightforward. The issues raised by Mr Tracey involve questions of law. The decision by a Member to recuse or not recuse herself or himself from hearing a matter is not merely a procedural matter. Recusal hearings can require the consideration of relatively complex legal principles and reference to an array of case law in both Commission and the Courts.
(footnotes omitted)
This finding, taken together with the lengthy and somewhat complex history of the matter during which BP Refinery has been permitted legal representation throughout, is sufficient in our view to permit an evaluative judgement to be made under s 596(2)(a) that the grant of permission would enable the matter to be dealt with more efficiently taking into account the complexity of the matter and to make reasonably available the exercise of the overall discretion under s 596(2) in favour of the grant of legal representation. The various matters raised by Mr Tracey in his appeal grounds and submissions do not identify any reasonably arguable case of appealable error in the exercise of the discretion but rather constitute no more than reasons why the Deputy President should have made a different decision.
Third, Mr Tracey was unable to articulate any reasonably arguable contention that the grant of permission for legal representation to BP Refinery would result in him not obtaining a fair hearing in relation to his recusal application.
Finally, Mr Tracey’s contention that the Deputy President erred by allowing BP Refinery to be legally represented at the Representation Hearing without first granting permission under s 596 is flawed and does not justify the grant of permission to appeal for the following reasons:
(1)By consent, the Deputy President granted BP Refinery permission for legal representation at the hearing of the matter under s 596(2)(a) on 9 August 2021.[12] This permission was never revoked nor was it quashed as a result of the appeal decision. Mr Tracey has not explained why BP Refinery needed to be granted permission again for the hearing on 3 February 2023 beyond the assertion that he assumed that this was necessary.
(2)The transcript of the hearing on 3 February 2023 discloses that Mr Tracey neither contended that BP Refinery needed to obtain permission for legal representation at that hearing nor expressed any opposition to the appearance of a legal representative on BP Refinery’s behalf. This was the case notwithstanding that it is clear that Mr Tracey was fully aware, in advance of the hearing, that BP Refinery would be legally represented at the hearing. Clearly, the parties were at odds as to the question of legal representation at the hearing of the recusal application, but there is no indication that this was in issue in relation to the Representation Hearing. Mr Tracey should not be granted permission to appeal to advance a new case in this respect which was not advanced at first instance.
(3)Mr Tracey has advanced no arguable contention that he was denied a fair hearing on 3 February 2023 as a result of BP Refinery being legally represented.
PRESIDENT
Appearances:
S Tracey, appellant, on his own behalf.
Hearing details:
2023.
Sydney, Melbourne and Perth by video using Microsoft Teams:
17 April.
[1] [2023] FWC 281
[2] Ibid at [1] – [12]
[3] [2022] FWC 1640
[4] [2022] FWCFB 210
[5] [2023] FWC 281 at [55]-[56]
[6] Ibid at [61]
[7] Ibid at [63]
[8] Ibid at [65]
[9] Ibid at [68]-[69]
[10] Ibid at [70]
[11] Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335; Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]; Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36]; Kaur v Hartley Lifecare Inc[2020] FWCFB 6434 at [21].
[12] Communicated by email to the parties dated 9 August 2021; see also [2022] FWC 1640 at [12]
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