Pal v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Pal v Commonwealth of Australia [2020] FCA 1483

File number(s): VID 264 of 2020
Judgment of: ANDERSON J
Date of judgment: 19 October 2020
Catchwords:

INDUSTRIAL LAW – proceeding concerns review of reasons of Full Bench of Fair Work Commission – application by respondent for summary dismissal of application for judicial review – alleged lack of reasonable prospect of success

Held: application for judicial review devoid of merit and lacking reasonable prospect of success – statement of claim fails to engage with decision of Full Bench of Fair Work Commission and has no reasonable prospect of success – application for summary dismissal granted

Legislation:

Fair Work Act 2009 (Cth), ss 400, 562, 570(2)(a)

Federal Court of Australia Act 1976 (Cth), s 31A

Judiciary Act 1903 (Cth), s 39B(1A)(c)

Federal Court Rules 2011 (Cth), r 26.01

Cases cited:

ACE Insurance Limited v Trifunovski [2013] FCAFC 3

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123

Baker v Patrick Projects Pty Ltd [2014] FCAFC 165

Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Collins v Minister for Immigration & Ethnic Affairs (1981) 4 ALD 198 at 201

Cook v Australian Postal Corporation [2017] FCA 509

Dafallah v Fair Work Commission [2014] FCA 328

Isbester v Knox City Council (2015) 255 CLR 135

Menzies v Fair Work Commission [2020] FCA 36

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Mwango v Fair Work Commission [2019] FCA 1274

Spencer v The Commonwealth (2010) 241 CLR 118

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 105
Date of last submission/s: 8, 10 and 14 October 2020
Date of hearing: 8 October 2020
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr Christoper McDermott
Solicitor for the First Respondent: Ashurst
Counsel for the Second Respondent: The Second Respondents filed a submitting notice

ORDERS

VID 264 of 2020
BETWEEN:

SARABJEET SINGH PAL

Applicant
AND:

COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE DEPARTMENT OF HOME AFFAIRS)

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

19 OCTOBER 2020

THE COURT ORDERS THAT:

1.The Applicant’s Originating Application and Statement of Claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.The First Respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3.The Applicant respond to any application for costs within 21 days of service of the First Respondent’s written submissions for costs and any supporting affidavit, or such further time as…

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Details
Case
[2020] FCA 1483
Decision Date

CaseChat Overview and Summary

Pal v Commonwealth of Australia involved a judicial review application brought by the Applicant against the Commonwealth seeking relief from decisions of the Fair Work Commission. The Commonwealth applied for summary dismissal of the Applicant's claims, arguing that the claims had no reasonable prospect of success. The primary issue before the court was whether the Applicant had a reasonable prospect of successfully prosecuting the proceeding against the Commonwealth. The court had to examine the Applicant's claims to determine if they engaged with the Fair Work Commission's decisions and identified any grounds for judicial review.

The court found that the Applicant's claims were devoid of merit and lacked a reasonable prospect of success. The Applicant's Statement of Claim did not properly identify any jurisdictional errors or errors of law in the Fair Work Commission's decisions. Furthermore, the Applicant's claims failed to address the substance of the Commission's reasoning and decisions. The court concluded that the Applicant had not identified any proper grounds for judicial review and that the claims were unlikely to succeed. Based on this, the court granted the Commonwealth's application for summary dismissal.

The court ordered that the Applicant's Originating Application and Statement of Claim be summarily dismissed under section 31A of the Federal Court of Australia Act 1976. The Commonwealth was given leave to apply for costs, and the Applicant was required to respond to any such application. The costs application was to be determined on the papers unless an oral hearing was required. This decision effectively ended the Applicant's judicial review proceedings against the Commonwealth.

Orders

Orders of the court

1. The Applicant’s Originating Application and Statement of Claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2. The First Respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3. The Applicant respond to any application for costs within 21 days of service of the First Respondent’s written submissions for costs and any supporting affidavit, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

4. Any application for costs be determined on the papers, unless it is decided that an oral hearing is required.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an application by the Commonwealth for, among other things, summary judgment in relation to this proceeding. For the reasons which follow, even after making assumptions which are favourable to the Applicant, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting this proceeding. The Applicant’s Originating Application and Statement of Claim will be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).PROCEDURAL BACKGROUND On 15 April 2020, the Applicant filed an Originating Application under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking declaratory and compensatory relief, on the basis of the grounds identified in an accompanying Statement of Claim. On 23 June 2020, the Commonwealth filed an interlocutory application under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and/or r 26.01(1) of the Federal Court Rules 2011 (Cth) (Rules) seeking summary dismissal of the Originating Application and the Statement of Claim on the grounds that there is no reasonable prospect of success in the Applicant prosecuting his proceedings for the following reasons:(1)the relief sought by the Applicant under s 39B(1A)(c) of the Judiciary Act is not capable of being granted by this Court properly exercising its ‘supervisory’ judicial review jurisdiction of decisions of the Fair Work Commission. Alternatively, the declarations sought by the Applicant would have no utility in the circumstances as the decisions made by the Fair Work Commission would remain legally extant;(2)as to the decision of the Full Bench of the Fair Work Commission dated 28 February 2020 (Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606)), no ground of jurisdictional error, or error of law on the face of the record (together, ‘errors of law’), is properly identified in the Applicant’s Statement of Claim;(3)as to the decision of the Fair Work Commission (Clancy DP) dated 21 August 2019 (Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2019] FWC 5821), no errors of law are properly identified in the Applicant’s Statement of Claim;(4)in the alternative, under r 16.21(e) of the Rules, the Commonwealth seeks to strike out the whole of the Statement of Claim filed on 22 April 2020 on the basis that it fails to disclose a reasonable cause of action. The Commonwealth also seeks an order that the Applicant pay the costs of, and incidental to, the Commonwealth’s interlocutory application on the grounds that the proceedings were instituted by the Applicant “without reasonable cause” (within the meaning of s 570(2)(a) of the Fair Work Act 2009 (Cth) (Fair Work Act)). In support of its interlocutory application, the Commonwealth relies upon the affidavit of Peter McNutly sworn on 19 June 2020 (McNulty Affidavit). Mr McNulty is the solicitor with the principal carriage of these proceedings in this Court for and on behalf of the Commonwealth, and he appeared for and on behalf of the Commonwealth in the proceedings brought by the Applicant against the Commonwealth in the Fair Work Commission.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 17 June 2019, the Applicant and the Department appeared at a hearing before the Fair Work Commission (as constituted by Deputy President Clancy).The Fair Work Commission’s decision On 21 August 2019, Deputy President Clancy ordered that the Applicant's application under Part 3-2 of the Fair Work Act be dismissed for want of jurisdiction. The Commission accepted the Commonwealth's submission that the Applicant was not an employee of the Department. Deputy President Clancy's reasons for decision were published as Pal v Commonwealth of Australia represented by the Department of Home Affairs [2019] FWC 5821. Deputy President Clancy concluded at [34]-[35]: Mr Pal submits the [contractual arrangement between the Applicant and the Department (Deed of Standing Offer)] does not have the effect of establishing he was an independent contractor. Essentially, his case is that the Department cannot rely on the text of the Deed of Standing Offer because he did not initial each of its pages and nor was it attached to any of the Notices purporting to extend it and further, that the Commission should look beyond its text. Mr Pal’s case that he was an employee is based on his submissions pertaining to the nature of his work, the manner in which it was performed and the various characteristics of the relationship he had with the Department.Applying the principle from Director-General of Education v Suttling [(1987) 162 CLR 427 at page 437], for there to have been an engagement by the Department of Mr Pal as an employee, it had to have been consistent with s.6 of the [Public Service Act 1999 (Cth) (PS Act)]. Section 6 provides that all persons engaged on behalf of the Commonwealth must be engaged either under the PS Act or under the authority of another Act. As far as the PS Act is concerned, there is nothing to suggest Mr Pal was an employee engaged by an Agency Head, on behalf of the Commonwealth, pursuant to s.22. Further, there is nothing before me to suggest the Department had authority under another Act to engage Mr Pal as an employee. In short, there was no evidence of Mr Pal having been engaged as an employee of the Commonwealth pursuant to a written contract of employment coming within the scope of s.6 of the PS Act. I am therefore satisfied that in this case, the Department did not exercise the statutory power of engagement pursuant to s.6 of the PS Act and note that Mr Pal acknowledged he does not have a document from the Commonwealth that describes him as an employee … Deputy President Clancy continued at [36]-[39]:Noting that s.6(3) of the PS Act also empowers the Department to engage persons as independent contractors, I am satisfied, having reviewed the terms of the Deed of Standing Offer, that this is what occurred in Mr Pal’s case despite his assertions to the contrary. The Deed of Standing Offer stated in express terms that the relationship between Mr Pal and the Commonwealth (through the Department) was not one of employment. Additionally, in executing the Deed of Standing Offer, Mr Pal specifically acknowledged that he was a Service Provider and not an employee. Further, Mr Pal agreed to the Department having the right to extend the Deed of Standing Offer at its discretion. I am satisfied that Mr Pal agreed to be bound by the terms of the Deed of Standing Offer, having signed it in the presence of a witness on 11 May 2015, and the Department’s right to extend it was validly exercised … Despite Mr Pal’s assertions, the Deed of Standing Offer did not require the parties to initial each of its pages and nor was there a requirement for it to be attached to any Notice of extension.I do not accept the proposition advanced by Mr Pal that the way in which the Deed of Standing Offer operated in practice made him an employee. Recognising in this case the Commonwealth does not concede that Mr Pal was an employee at common law, the following passage from Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth [[2005] FCAFC 204; 145 FCR 277 at [42]] is nonetheless apposite: “The fact that subsequent “operational” factors such as the method of work and performance would have the hypothetical effect at common law that Mr Arends was an employee does not mean that he was in employment by authority of a law of the Commonwealth, particularly in circumstances where the instrument under which the contract was made was specific in stating that the contract did not effect employment. His own belief as to his status is not relevant.”Consistent with the conclusion of the Full Court in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth, having concluded that there is no evidence that Mr Pal was engaged as an employee either under the PS Act or the authority of another Act, and that he was instead engaged under a contract which specifically stated the relationship between him and the Department was not one of employment, it is not necessary for me to assess whether the terms of the Deed of Standing Offer did or did not meet the common law indicia of an employment relationship. As such, having been persuaded Mr Pal was not engaged as an employee under the PS Act, Mr Pal cannot have been an employee of the Department and therefore does not come within the definition of a national system employee. This being the case, Mr Pal was not an employee to whom Part 3-2 of Chapter 3 of the Act applies and was therefore not a person protected from unfair dismissal.(Emphasis in the original.)

Ratio Decidendi

Legal Principle Established

The Applicant made further submissions in Exhibit A-2. Exhibit A-2 states that it is a “true and accurate copy of [the Applicant’s] incomplete” submissions made at the hearing of the Commonwealth’s interlocutory application on 8 October 2020. Exhibit A-2 contains the following submissions: (1)The Applicant submits that the Commonwealth’s submissions at the hearing of the Commonwealth’s interlocutory application were “totally irrelevant” because the Commonwealth’s submissions did not focus on the Fair Work Commission’s “evasion of relevant evidence and reliance on irrelevant evidence”.(2)The Applicant submits that, at the Full Bench’s hearing, the Applicant requested that a “live interpreting call” (ie a call which would show the Applicant’s role as an interpreter) be conducted as it was the Applicant’s “most crucial evidence on independent contracting”, but the Full Bench declined that request. The Applicant submits this “live interpreting call” was not fresh evidence. The Applicant submits that the Full Bench’s failure to allow the Applicant to conduct a “live interpreting call” during the Full Bench hearing constituted bias by the Full Bench of the Fair Work Commission. (3)The Applicant set out the process of conducting a telephone call as an interpreter. The Applicant essentially submits that, when regard is had to the process of such a call, it was not reasonably open to find that the Applicant was not an employee of the Department. (4)The Applicant submits that, when regard is had to the Applicant’s pay and mode of payment, and the tools the Applicant used in performing the role of an interpreter, the Applicant’s work did “not have a single salient feature of independent contracting”. The Applicant submits that, because of the Fair Work Commission Full Bench’s “deep bias and prejudice”, the Full Bench did not accept these facts, which the Applicant submits were “uncontradicted”. (5)The Applicant submits that the High Court’s reasoning in Pell ensured “every fact [is] appealable, arguable, significant and winnable”. The implication appeared to be that the Fair Work Commission or the Full Bench of the Fair Work Commission’s factual findings were erroneous and the Commonwealth’s interlocutory application should fail on that basis. (6)The Applicant’s submissions reiterated that the Full Bench of the Fair Work Commission “deliberately and unfairly evaded [the Applicant’s] entire[ly] uncontradicted relevant evidence which was 100% strong on the scale of balance of probabilities and relied on [the] [D]epartment’s zero evidence on independent contracting”. The Applicant submits that the Full Bench committed “innumerable jurisdictional errors by evading [the Applicant’s] evidence”. (7)Certain of the Applicant’s submissions were directed towards alleged unfairness in the Department’s treatment of the Applicant. (8)The Applicant submits that “[i]t was mandatory for Deputy President Clancy to obtain and test all” aspects of several allegations, or evidence relating to those allegations, set out in Exhibit A-2. The Applicant submitted that this amounted to “multiple serious errors of law” and a “breach of natural justice”. (9)The Applicant reiterated his submission that Deputy President Clancy’s conduct of the hearing in the Fair Work Commission was, in the Applicant’s submission, seriously improper. At one point, the Applicant’s submissions went so far as to say that a “shameful and disgusting conspiracy by the [D]epartment and the [Fair Work Commission] flowed throughout the [Applicant’s] pr[o]ceedings” in the Fair Work Commission. (10)The Applicant submitted that this Court should “obtain and refer” to certain “crucial records and documents”. The implication was that, if this Court did that, the Commonwealth’s interlocutory application should be dismissed. CONSIDERATIONThe test for summary judgment