Appeal against decision [2022] FWC 2721 of Commissioner McKenna at Sydney on 28 October 2022 in matter number U2020/11942 – Permission to appeal refused - Appellant required to pay the Respondent costs and disbursements on an indemnity basis in the amount of $36,398.05 plus GST– conduct of Appellant of serious concern – referral to be made to the Law Society of New South Wales

INTRODUCTION

On 17 November 2022, Mr Prateek Patial (the Appellant) filed a Form F7 – Notice of Appeal (Form F7) dated 17 August 2022 with the Commission. In response to the requirement in the Form F7 at 1.1 to provide the details of the matter he was seeking to appeal, the Appellant outlined it was a decision of Commissioner McKenna dated 28 October 2022 (Costs Quantification Decision).[1] However, when providing the required description of the decision and/or order he was appealing in response to 1.2 of the Form F7, the Appellant outlined that he was appealing the following decisions and orders:

a)The Costs Quantification Decision, in which the Commissioner determined the Appellant was required to pay Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants (the Respondent) the amount of $36,398.05 plus GST within 21 days;

b)The order of Commissioner McKenna issued on 28 October 2022 (Costs Order)[2] giving effect to the Costs Quantification Decision;

c)The decision of Commissioner McKenna issued on 18 July 2022 (Costs Decision),^[3] in which the Commissioner granted an application made by the Respondent pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Act) for indemnity costs against the Appellant arising out of the Appellant’s unfair dismissal application;

d)The decision of Commissioner McKenna issued on 6 August 2021 (Substantive Decision),[4] in which the Commissioner determined that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act;

e)The order of Commissioner McKenna issued on 6 August 2021 (Substantive Order)[5] giving effect to the Substantive Decision; and

f)The decision of the Full Bench of the Commission issued on 24 November 2021 (Appeal Decision), [6] which concerned the appeal lodged by the Appellant pursuant to s.604 of the Act on 27 August 2021 against the Substantive Decision, and from which the outcome was the Full Bench declining to grant permission to appeal.

The Appellant also indicated in the Form F7 that he sought a stay of the whole of the Costs Quantification Decision and Costs Order. This application for a stay order was heard and determined by Deputy President O’Neill. The Deputy President dismissed the stay application on 6 December 2022.[7]

The matter was then listed for the determination of the issue of permission to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2023] FWCFB 73
Case: [2023] FWCFB 73
Decision Date: 19 April 2023

CaseChat Overview and Summary

Prateek Patial, the Appellant, sought to appeal a decision of Commissioner McKenna made under the Fair Work Act 2009. The decision was to order the Appellant to pay the Respondent, Kailash Lawyers Pty Ltd, $36,398.05 plus GST. The appeal was heard by Deputy President Clancy, Deputy President Millhouse, and Commissioner Harper-Greenwell of the Fair Work Commission. The Appellant sought to appeal six decisions and orders made by Commissioner McKenna in relation to the Appellant's dismissal from the Respondent. The Appellant also sought to stay two of the orders pending the appeal. Permission to appeal was refused and the appeal was dismissed. Permission to appeal was refused in relation to the Appeal Decision as it was a decision of the Full Bench. The appeals against the Costs Decision, the Substantive Decision and the Substantive Order were dismissed as the Appellant had failed to lodge the appeals within the time prescribed by rule 56(2)(a). An application to extend the time in which to lodge the appeals was dismissed. The appeal against the Costs Quantification Decision and the Costs Order was dismissed as none of the grounds of appeal were reasonably arguable and the public interest was not engaged. The Appellant remained liable to pay the costs ordered by Commissioner McKenna. The Full Bench considered the conduct of the Appellant to be of serious concern and intended to refer the matter to the Law Society of New South Wales.

Orders