Picos v Perez Varela Lawyers
[2018] FCCA 646
•15 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICOS v PEREZ VARELA LAWYERS & ANOR | [2018] FCCA 646 |
| Catchwords: INDUSTRIAL LAW – Interlocutory application for continuation of employment – whether there is a prima facie case – where the balance of convenience lies – no exceptional or special circumstances to warrant continuation of relationship – application in a case dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.566, 570 Cases cited: |
| Applicant: | CONNIE LOUISE PICOS |
| First Respondent: | PEREZ VARELA LAWYERS |
| Second Respondent: | JOSE APOLINAR PEREZ |
| File Number: | SYG 602 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 15 March 2018 |
| Date of Last Submission: | 15 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Mr R Hassall Sparke Helmore |
ORDERS
The affidavit filed on behalf of the first respondent dated 15 March 2018 is to be supressed and marked as a confidential affidavit not available for public access.
Direct that there be filed a copy of the affidavit without annexure A, it does not need to be resworn, which will be on the public record.
Annexure A to the affidavit of Jose Perez filed on 15 March 2018, which has been read is supressed and remains the subject of confidentially order 1 above.
The Court reserves any question of costs under section 570.
The application in a case is dismissed.
The application for a stay of the order is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 602 of 2018
| CONNIE LOUISE PICOS |
Applicant
And
| PEREZ VARELA LAWYERS |
First Respondent
| JOSE APOLINAR PEREZ |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of an interlocutory application where the applicant is seeking a continuation of her employment. The applicant is a solicitor. The applicant put on an affidavit in support of the application for the interlocutory injunction. The affidavit was less than candid. The affidavit failed to disclose that the applicant was the subject of two conditions on her practicing certificate in terms of the details of those conditions. Reference was made to the topic, but the conditions were not disclosed.
The conditions are ones in respect of which the Court has made a confidentiality order. The conditions were clearly relevant to the nature of the dispute in the present case. There was a lack of candour by the applicant not to fully disclose those conditions. Further, the circumstances of the present case are one where there was a dismissal of the applicant for grounds which include dishonesty. Nowhere in the applicant’s affidavit did the applicant properly address the allegations giving rise to her dismissal. In particular, the applicant did not address the issues of dishonesty. This also reflects a lack of candour.
The applicant has informed the Court that she wanted alternatives to her employment with the respondents and she decided that she would become a migration agent, a fact that was concealed from her employer at the time of her commencement of employment in terms of the execution of her contract dated 4 August 2017. Moreover, the applicant has acknowledged that she did not disclose to the employer prior to the execution of the contract that she was the subject of conditions on her practicing certificate.
Those factors reflect very poorly on the applicant in relation to the applicant’s candour to this Court and in relation to the issues that arise in the context of whether there is a prima facie case and where the balance of convenience lies in circumstances of the present matter. Legal practitioners have a significant privilege in relation to the role they perform in the Courts. The Courts are entitled to expect lawyers, in particular when they are litigants, to adhere to the standards that are required.
The failure to make full and frank disclosure in the circumstances relating to the dismissal, the issues of dishonesty, her conditions on the practicing certificate and her migration agent activity, materially adversely affects the balance of convenience and whether there is any prima facie case. Whilst it may be that the approach to the granting of injunctive relief, given the consequences of the Act, as was said by Bromberg J in Quinn v Overland [2010] FCA 799, are ones which have modified the stringency of the exceptional and special circumstances identified in Byrne & Australian Airlines (1995) 185 CLR 410 at 428, compelling the ongoing relationship of a small firm in circumstances where there are serious allegations of dishonesty that, on the face of the material before the Court, appear open and that had not been properly or candidly addressed by the applicant are grounds alone to refuse the interlocutory injunction.
From the bar table, the applicant made an extraordinary assertion that she had to bring these injunction proceedings in order to have her name removed from the Law Society of NSW record relating to her place of employment. The Court identified that that was a proposition completely without substance.
At the commencement of the proceedings, the Court also handed down to both parties, a copy of a decision of this Court, McIntosh v Camilla Australia Pty Ltd & Anor [2018] FCCA 239 identifying considerations in relation to the granting of an interlocutory injunction particularly where in the circumstances of this case, it was disclosed that reinstatement was relief available to the applicant from the Fair Work Commission.
Whilst it may be that there are circumstances in which this Court will exercise its powers to grant an injunction to compel a relationship and find that there are special circumstances, it would not do so where there are serious allegations of dishonesty such as those that arise in the present case. Further, it is apparent on the applicant’s own evidence that there are disputes in relation to the terms of her employment in terms of remuneration and bonuses. That is a further reason why the Court would not compel a relationship to continue between the parties.
The Court has taken into account the applicant’s submissions, both oral and in writing. The applicant’s submissions suffer from a lack of objectivity and comprehension of the issues that arise in relation to whether or not, there is a prima facie case and where the balance of convenience lies and the adequacy of damages. The applicant contends that because she brought a bullying dispute before the Fair Work Commission, that the dismissal is manufactured and not genuine and that she has been subject to adverse action. The dismissal letter identifies serious allegations that on their face would justify the dismissal summarily of the applicant if they are found to be true. It is not necessary for this Court to determine whether they are true, suffice to say, that the Court is not persuaded that there is a prima facie case that the applicant is likely to succeed under the Act in respect of the allegation of wrongful dismissal.
When one comes to the balance of convenience, the issue of dishonesty and dispute in relation to terms and bonuses are reasons suffice to find that the balance of convenience does not favour the grant of an injunction. The Court is not satisfied that the circumstances of the present case meet the criteria of exceptional or special circumstances to warrant compelling the continuation of an employment relationship.
Further, even allowing for the broader and less stringent approach identified by Bromberg J, the circumstances of the present case identify an irretrievable break down of a relationship in a small firm. It would not be appropriate in those circumstances on the balance of convenience to compel a continuation of the relationship.
No competent lawyer, looking at the facts in the present case, would have brought the present application for an interlocutory relief with the lack of candour referred to above. The fact that the applicant is acting for herself is a matter of concern. The issues raised in these proceedings could affect the applicant’s continued fitness to practice as a lawyer.
This is a case where it was manifestly patent that damages would be an adequate remedy in circumstances where the issue of dishonesty had been raised. Whether the applicant is ultimately entitled to succeed, damages would be, in the circumstances of the present case, an adequate remedy. The applicant was not in the least bit concerned about the allegations of dishonesty against her being made public. It is difficult to understand that submission in the context in which the applicant having sought and obtained the confidentiality order in relation to the conditions on her practicing certificate.
From the bar table, before the reasons were delivered, the applicant requested a stay of the orders. I do not propose to grant any stay. These are proceedings that, on their face, should not have been brought in respect of the interlocutory application and alleged supporting material. The lack of candour by a solicitor of the Court in a potential ex parte injunctive application is deeply concerning.
It is not necessary for this Court to determine today whether the proceedings that have been brought fall within s 570. The application in a case for an interlocutory injunction is dismissed. The Court reserves the question of whether there should be an order under s 570 against the applicant until the conclusion of the hearing of the substantive matter or the resolution of the proceedings.
The application in a case is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 April 2018
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