Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants
[2023] FWCFB 73
•19 April 2023
| [2023] FWCFB 73 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Prateek Patial
v
Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants
(C2022/7586)
| DEPUTY PRESIDENT CLANCY | MELBOURNE,19 APRIL 2023 |
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 only. On 14 December 2022, directions were issued for the filing of material and the matter was listed for hearing on 7 February 2023. At the hearing, the Appellant represented himself and Mr Amit Pall, the Respondent’s Director and Principal, represented the Respondent. At this time, the Appellant confirmed he wished to appeal the combination of Decisions and Orders referred to in the Form F7.[8] It is necessary to deal with the combination of Decisions and Orders in three separate tranches.
DECISIONS AND ORDERS UNDER APPEAL
The Appeal Decision
As to the appeal against the Appeal Decision, s.604 of the Act provides:
“Appeal of Decision
1) A person who is aggrieved by a decision:
a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
3) A person may appeal the decision by applying to the FWC.”
(our emphasis)
As s.604 makes clear, the Act does not provide for appeal of a decision of a Full Bench of the Commission to another Full Bench. Instead, a person aggrieved by a decision of a Full Bench of the Commission may seek judicial review of the decision in the Federal Court of Australia, pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.562 and 563 of the Act.[9] Accordingly, to the extent the Appellant seeks permission to appeal the Appeal Decision we refuse to grant permission to appeal.
Costs Decision, the Substantive Decision and the Substantive Order
As to the Costs Decision, the Substantive Decision and the Substantive Order, an appeal filed under s.604 of the Act must be lodged within 21 calendar days after the date of the decision or order being appealed, or within such further time allowed by the Commission.[10] We observe in this regard:
· The appeal against the Costs Decision was lodged 101 days out of time;
· The second appeal against the Substantive Decision was lodged 447 days out of time;
· The second appeal against the Substantive Order was also lodged 447 days out of time.
Accordingly, the appeals against the Costs Decision, the Substantive Decision and the Substantive Order cannot proceed unless the Commission grants the Appellant an extension of time. The Appellant did not address the requirement for an extension of time in the Form F7 or his written submissions filed on 9 January 2023 but was invited to do so at the hearing.[11]
Rule 56(2)(c) of the Fair Work Commission Rules 2013 (Rules) confers a discretion on the Commission to extend the time within which an appeal is to be lodged. However, time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.[12]
The authorities[13] indicate that the following matters are relevant in considering whether to exercise the Commission’s discretion to extend time under Rule 56(2)(c):
· Whether there is a satisfactory reason for the delay;
· The length of the delay;
· The nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
· Any prejudice to the Respondent if time were extended.
In broad terms, the issue for determination is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour the Appellant being granted an extension of the time within which to lodge the appeal against each of the Costs Decision, the Substantive Decision and the Substantive Order.
Application for extension of time - Reason for the delay
Dealing firstly with the reason for the delay, the Appellant’s submission at the hearing was that there has been conduct of bribery, corruption, perjury, evidence tampering and dishonesty in the proceedings and that “it takes time to find out these things.”[14] As we will outline below, we regard the conduct allegations the Appellant has made as entirely baseless.
Given that the Appellant has previously appealed the Substantive Decision and the Substantive Order, we are not satisfied the Appellant has provided a satisfactory reason for the 447-day delay in lodging a second appeal against the Substantive Decision and the Substantive Order.
As regards the 101-day delay in lodging the appeal against the Costs Decision, we observe that this decision dealt with the discrete issue of the Respondent’s application for a costs order arising out of the Substantive Decision. In circumstances where the Appellant already had familiarity with the right to appeal and the Commission’s appeal processes, there was nothing to prevent him from immediately taking steps to appeal the Commissioner’s decision that the Respondent had made out its application for an order for indemnity costs. In addition, the Commission’s Fair hearings practice note is available on the Commission’s website and provides procedural guidance and information about the conduct of hearings before the Commission. This includes a section What action can be taken if a party is aggrieved by a decision of the Commission, which provides “Appeal proceedings are outlined in the Appeal proceedings practice note, available on the Commission website.” From the Commission’s Appeal proceedings practice note, the Appellant could have ascertained, if he was aggrieved by the Costs Decision, that he could seek permission to appeal it and further, that Rule 56(2) of the Rules required him to lodge the Form F7 by midnight on 8 August 2022.[15]
Having regard to the material before us, we are not satisfied that the Appellant has provided a satisfactory reason for either the 101-day delay in lodging the appeal against the Costs Decision or the 447-day delay in lodging the appeal against both the Substantive Decision and the Substantive Order. This is a factor that weighs against granting an extension of time in relation to each of them.
Application for extension of time - Length of the delay
The length of delay for each application is substantial. This factor weighs against granting an extension of time within which to allow the Appellant to lodge the appeal against the Costs Decision, the Substantive Decision and the Substantive Order.
Application for extension of time - Prospects of the appeal
As earlier stated, the Appellant has previously appealed the Substantive Decision and the Substantive Order. Further, we note that in outlining his grounds of appeal in the Form F7, the Appellant has largely reproduced the same grounds of appeal set out in the Form F7 – Notice of Appeal dated 27 August 2021 that was filed by the Appellant when he lodged his first appeal against the Substantive Decision and the Substantive Order. Additionally, we have reviewed of the Appellant’s Outline of Submissions filed on 9 January 2023, which was divided into 17 parts. Part 1 is an introduction, Part 16 deals with public interest submissions and Part 17 is the conclusion. Of Parts 2-15, we observe that Parts 2, 3 and 11-15 are submissions that the Appellant advanced or could have advanced in prosecuting the first appeal. Part 16 is stated to concern the public interest submissions but in essence largely repeats, in summary form, submissions made by the Appellant in Parts 2-15. Part 17 includes what might be regarded as further public interest submissions.
As to the Costs Decision, we observe that the grounds of appeal in the Form F7 and the Appellant’s Outline of Submissions filed on 9 January 2023 were largely focussed on challenging the Substantive Decision and the Substantive Order. This was the approach the Appellant adopted before the Commissioner, as the following findings of the Commissioner indicate:
“Mr Patial’s submissions in opposition to the costs application were not responsive or relevant to the determination of the provisions concerning ordering costs under the Act, or the authorities around such matters. Rather, Mr Patial’s submissions largely comprised reasons why the findings in my initial decision were incorrect and why the Commission had no supporting evidence in relation to the findings I made and why the decision should, by one means or another, be revisited. More particularly, Mr Patial’s submissions otherwise largely also included repeated allegations of a most serious nature, without anything in support of those allegations, about Kailash’s witnesses and representatives.”[16]
To the extent the grounds of appeal and the Appellant’s Outline of Submissions deal with costs, they do so almost exclusively having regard to issues relating to the quantum of the costs claimed, as opposed to the appropriateness of making an order for indemnity costs against the Appellant. The hearing of the Respondent’s application for costs was conducted on 23 March 2022, at which the Respondent was granted permission to be represented. Ms Sarah Christie of Employsure Law Pty Ltd (Employsure Law) gave evidence on behalf the Respondent. In the Outline of Submissions filed on 9 January 2023, the Appellant challenges the decision to grant permission for representation and the manner in which the Commissioner presided over Ms Christie’s evidence.
In considering the merits of the appeal, it is relevant to observe that an appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[17] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[18] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.[19] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[20] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[21]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[22] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[23]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[24] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Dealing firstly with the Substantive Decision and the Substantive Order, in Jeremy Snyder v Helena College Council, Inc. T/A Helena College,[25] the Full Bench proceeded on the assumption that the doctrine of res adjudicata does not apply to the Commission, before outlining a number of policy reasons why the Commission should not readily accede to an application for permission to appeal in circumstances where there has been a previous appeal of the same decision. As to the policy reasons the Full Bench outlined, we agree that:
· The public policy benefits associated with providing finality in litigation tell against such a course;
· It may erode public confidence in the administration of justice if conflicting decisions were obtainable by differently constituted Full Benches on the same matter;
· The Act does not contemplate an aggrieved person lodging multiple appeals in respect of the same decision; and
· The Act does not provide for appeal of a decision of a Full Bench of the Commission, with a person aggrieved by a decision of a Full Bench able to seek judicial review of the decision in the Federal Court of Australia.[26]
These considerations weigh against a finding that it is in the public interest to grant permission to appeal in respect of the Substantive Decision and the Substantive Order.
Further, we are not persuaded the grounds of appeal in either the Form F7 or the Appellant’s Outline of Submissions filed on 9 January 2023, to the extent they purport to address the Substantive Decision and the Substantive Order, enliven the public interest. Of significance amongst these are the submissions that only the jurisdictional objection going to whether the Appellant was an employee was to be heard and determined and that during the proceeding, the Commissioner did not afford the Appellant procedural fairness because the Commissioner denied him the opportunity to make submissions regarding the Small Business Fair Dismissal Code (Code).
In the Substantive Decision, the Commissioner held:
“If I am wrong in my conclusion that the applicant was not an employee of the respondent, I would, in the alternative, dismiss the applicant’s application for an unfair dismissal remedy having regard to the provisions of the Code. In the consideration that follows, I proceed on the basis that the applicant was an employee of the respondent – albeit contrary to my finding the applicant was not an employee. I also proceed on the basis that the termination of the relationship constituted a dismissal from employment – again contrary to my finding the applicant was not an employee and, thereby, dismissal from employment did not arise in the circumstances of this case.”[27]
The Commissioner noted the Appellant’s opposition to the Respondent’s reliance on the Code but referred to the requirements imposed by s.396 of the Act and noted that if the termination of the Appellant was a dismissal from his employment with the Respondent, it was a summary dismissal and thus the summary dismissal provisions of the Code arose for consideration.[28] Having outlined the relevant factual background, the Commissioner determined the termination of the relationship between the Appellant and the Respondent, if constituting a dismissal from employment, was compliant with the Code.[29]
We have noted that in the Appeal Decision, the Full Bench addressed the Appellant’s submission that he was not afforded an opportunity to be heard in relation to the Code and was therefore denied procedural fairness. The Full Bench determined in the Appeal Decision, having regard to the Substantive Decision and the material that was before the Commissioner, that:
· The Appellant was on notice prior to the hearing of the matter before the Commissioner that the Respondent was relying on the application of the Code if the Appellant was found to be an employee;
· The Respondent had addressed the issue of the Code in its closing submissions; and
· The Appellant responded, albeit briefly, to the Respondent’s submissions on the Code in his closing submissions in reply.[30]
The Full Bench confirmed that whether a dismissal was consistent with the Code is a matter that must be determined prior to a consideration of the merits of an unfair dismissal application and proceeded to reject the Appellant’s submission that he was denied procedural fairness in relation to the alternative finding of the Commissioner that the dismissal was consistent with the Code.[31] The ultimate findings of the Full Bench in the Appeal Decision were that:
· The Appellant had not questioned the Commissioner’s finding that his dismissal was consistent with the Code; and
· As no appeal was brought against that finding, the decision of the Commissioner to dismiss the unfair dismissal application, albeit in the alternative, was sufficient to dispose of the appeal; and
· Its conclusion in relation to the Code made it unnecessary to deal with any other ground of appeal raised by the Appellant.[32]
Having regard to the approach to the Code adopted by the Commissioner in the Substantive Decision and the Full Bench in the Appeal Decision, we are not persuaded the Appellant’s submissions disclose a reasonably arguable case that the Commissioner erred:
· By considering the Code in addition to the jurisdictional objection going to whether the Appellant was an employee; and/or
· By not affording the Appellant procedural fairness in that the Commissioner denied him the opportunity to make submissions regarding the Code during the proceeding.
We agree with the Full Bench’s determination in the Appeal Decision that its conclusion in relation to the Code made it unnecessary to deal with any other grounds of appeal. Further, we are not persuaded that any ground of appeal has been advanced, in relation to the application of the Code in the appeal proceeding before us, that gives rise to a reasonably arguable case of error.[33] As such, we have concluded that the Appellant has no reasonable prospect of obtaining permission to appeal against both the Substantive Decision and the Substantive Order, as the appeal against them does not enliven public interest. Accordingly, there is little likelihood that the appeal grounds advanced in relation to the Substantive Decision and the Substantive Order would be upheld if time was extended.
As to the grounds relating to the Costs Decision, we observe that while the Commissioner granted permission to the Respondent to be represented during the first listing before her in relation to the Appellant’s substantive application, the Appellant did not appeal the grant of permission and at no stage did the Commissioner revoke the permission.[34]
As to the manner in which the Commissioner presided over Ms Christie’s evidence, the Appellant submitted the Commissioner:
· Interfered with the cross-examination of Ms Christie;
· Helped Ms Christie to give answers and ‘put words in her mouth’;
· Did not allow him to ask questions of Ms Christie “concerning the false rates charged by her”; and
· Directed him to provide cross-examination questions in writing to Ms Christie in advance.
We have reviewed the transcript of the cross-examination of Ms Christie and we are not persuaded the submissions that the Commissioner interfered with the cross-examination of Ms Christie, helped her to give answers and ‘put words in her mouth’ are reasonably arguable. We observe that at the commencement of the hearing on 23 March 2022, the Commissioner outlined that the focus of the proceeding was the discrete matter of the cross-examination of Ms Christie in relation to the statement she had provided in support of the Respondent’s costs application.[35] Contrary to the submissions of the Appellant, we consider the Commissioner played a constructive role in clarifying and confirming particular questions the Appellant was seeking to put to Ms Christie so that she could provide an answer.[36] Further, we do not find the Appellant’s complaint that he was not allowed to ask questions of Ms Christie reasonably arguable. On a number of occasions, the Commissioner had to remind the Appellant that the purpose of the hearing on 23 March 2022 was the substantive question of whether it was appropriate for the Respondent to be awarded costs, because the Appellant repeatedly sought to cross-examine Ms Christie regarding the quantum and assessment of the costs claimed and in relation to matters that had already been dealt with in the Substantive Decision.[37]
Finally, we were not directed to any evidence of the Commissioner directing the Appellant to provide cross-examination questions in writing to Ms Christie in advance of the hearing. Rather, it is apparent that the Commissioner took care to ensure the Appellant had completed his cross-examination of Ms Christie[38] and then afforded him the opportunity to file further submissions in writing following the cross-examination,[39] subsequently making directions facilitating this.
Ultimately, we are not persuaded the Appellant has identified any public interest considerations that would support the granting of permission to appeal against the Costs Decision.
Our reservations regarding the likelihood of any of the appeal grounds being upheld and the absence of public interest in granting permission to appeal in relation to the Substantive Decision, the Substantive Order and the Costs Decision weighs against the granting of an extension of time.
Application for extension of time - Prejudice to the Respondent
Neither party addressed this factor.
Conclusion - Costs Decision, the Substantive Decision and the Substantive Order
After considering all of the circumstances, we are not persuaded that it is in the interests of justice to extend time for the Appellant to lodge the appeal against the Substantive Decision, the Substantive Order and the Costs Decision. Accordingly, we dismiss the Appellant’s application to extend time to lodge the appeal against the Substantive Decision, the Substantive Order and the Costs Decision.
Costs Quantification Decision and Costs Order
Following the Costs Decision, the Commissioner determined to stand the matter over for approximately three weeks to give the parties an opportunity to negotiate the final costs amount. As agreement was not reached, there were further listings and directions before the Commissioner decided to determine the quantification of costs on the papers.
In the Costs Quantification Decision, the Commissioner outlined the background to the matter and then set out the quantum of the costs sought by the Respondent, detailing the explanation given by the Respondent in relation to the invoices it had submitted and the invoicing process lying behind them.[40] We observe that the invoices were those issued by the Respondent’s representative, Employsure Law. The Commissioner observed that the Appellant’s submissions were not responsive to the question of costs identified in the Respondent’s submissions and the invoices. The Commissioner then reproduced the description of aspects of the Appellant’s submissions outlined by the Respondent, and the Respondent’s contentions that its submissions as to the costs quantum were unchallenged and that the Appellant had neither traversed nor challenged:
· The appropriateness of schedule of costs detailing costs incurred; or
· The reasonableness of invoices and fee schedules detailing costs incurred; or
· The appropriateness or reasonableness of the quantum of costs sought, being $36,398.05 plus GST.[41]
Turning to the quantum of costs claimed, the Commissioner outlined the following:
“[10] As Kailash’s reply submissions noted concerning the claimed amount of costs:
“30. The question relevantly before Commissioner McKenna and the parties is the appropriateness and reasonableness of costs incurred by the Cost Applicant. The Cost Respondent has not responded to this question in the Cost Respondent’s Submissions.
31. [The] Cost Respondent’s Submissions as to costs quantum are devoid of any challenge to the Cost Applicant’s submission that its cost are [sic] reasonably incurred and that it is appropriate they be awarded in full. Absent any express contest or rejection of the Cost Applicant’s submissions, the Cost Respondent is presumed to have admitted the costs are reasonable and appropriate.”
[11] Mr Patial determined that “there is no point in writing submissions”, that being submissions relevant to Kailash’s claimed amount of costs. Mr Patial’s submissions read:
“12. I submit that there is no point in writing the submissions; use my resources and valuable time because you are biased and corrupt; you are already persuaded by the WHITE CHRISTIE [i.e., Employsure’s Ms Christie] AND WHITE PLUMMER [i.e., Employsure’s Mr Plummer] and have an understanding with them, and I am damn sure you will not find anything even if the evidence speaks for itself.” (Bold and uppercase in original)
[12] As to the preceding paragraph from Mr Patial’s submissions, it may be noted that Mr Patial is a legal practitioner, with his own law firm. Against the background of the fact that Mr Patial is a practising solicitor, he may be taken to have been aware, or he ought to have been aware, of the consequences of failing to address in his submissions matters that were relevant to the claimed amount of costs. I accept Kailash’s submission that there was “no contest between the parties in respect of the appropriateness or reasonableness of costs incurred by the Cost Applicant”.
[13] What is set out in Kailash’s materials by way of costs and disbursements does not disclose any costs that were incurred unreasonably or which otherwise appear to involve charging in an unreasonable amount – particularly having regard to the nature of the case sought to be advanced by Mr Patial in the substantive proceedings, being a matter that I have earlier addressed in both the Substantive Decision and the Costs Decision. I will make the order for costs in the amount sought by Kailash, given the absence of anything relevant advanced by Mr Patial to contest the claimed money amount (other than a submission that certain invoice amounts do not tally, being a submission made by Mr Patial outside the timeframe in the directions) and because of my conclusion that what is claimed in costs does not disclose unreasonableness in the work undertaken or in the costs that were invoiced.” [42]
The Commissioner then dealt with a ‘discrete matter’ raised by the Appellant relating to the addressee on the costs tax invoices from Employsure Law and his submission that, because the addressee (“Koala Investment Property Pty Ltd”) was not a party to the proceedings, all the tax invoices should be disregarded.[43] The Commissioner accepted the Appellant was correct in his submissions that all the tax invoices were made out to “Koala Investment Property Pty Ltd” and that this entity was not (and had never been) a party to either the substantive unfair dismissal proceedings or the costs application. However, the Commissioner also noted:
· After the words “Koala Investment Property Pty Ltd” and a comma, the word “Kaila” next appeared in the “Invoice address” section of the invoices;[44]
· It was uncontested that the Respondent and Koala Investment Property Pty Ltd share a common business address in Parramatta;
· Details specific to the Respondent were relevantly contained within the descriptions in the invoices of the work undertaken and it was clear for which entity the Employsure Law services were provided;[45]
· The invoices prima facie demonstrated that work of the type described in the invoices was undertaken by Employsure Law for the Respondent, with an essential element being that the costs were incurred in the Respondent responding to Mr Patial’s unfair dismissal application;
· The Respondent and Koala comprised a “single client” of Employsure Law, in circumstances where Mr Pall is a single and shared director of both entities;
· The Respondent’s submissions that the “innocuous and immaterial fact” of having two entities on a single account is that when Employsure Law generates its invoices for fees, both entities’ names usually appear on the invoice save for where there is insufficient space and that the space provided by Employsure Law’s accounting software provided insufficient space for the names of both entities, as could be seen on the invoices in relation to this matter;
· The Respondent’s submissions that Employsure Law’s software “plainly” cut-off the Respondent’s full name in the invoices, that the Respondent’s full name would have appeared on the invoices if there was sufficient space and that there was no reason behind which entity appeared first on the invoices beyond that “Koala Investment Property Pty Ltd” was the first one entered into the client database when Employsure created the account; and
· The Respondent’s submission that regardless of having “Koala Investment Property Pty Ltd” (as well as the cut-off “Kaila”) on the invoices’ address section, Employsure Law’s invoices were for work completed for the Respondent and the liability to pay the invoices fell to the Respondent.
The Commissioner concluded there was nothing before the Commission to contradict or challenge these submissions. The Commissioner did not accept the Appellant’s contention that “all the invoices should be disregarded”. The Commissioner instead accepted the Respondent’s submissions regarding how the “Koala Investment Property Pty Ltd” name appeared on the face of the invoices followed by a comma and then the partly-spelt “Kaila” in the invoices’ address section instead of the full spelling of the Respondent’s name and/or trading name. The Commissioner was satisfied that this was principally due to what was generated by Employsure Law’s accounting software, in circumstances where the Respondent and “Koala Investment Property Pty Ltd” are both clients of Employsure Law and Mr Pall is the sole director of each of the two companies.[46]
The Commissioner proceeded to publish the Costs Quantification Decision and Costs Order requiring the Appellant to pay the Respondent costs and disbursements in the amount of $36,398.05 plus GST[47] by no later than 21 days after the date of the Costs Quantification Decision.[48]
Grounds of Appeal and Submissions
Earlier in this Decision we have noted that in outlining his grounds of appeal in the Form F7, the Appellant has largely reproduced the same grounds of appeal outlined in the Form F7 – Notice of Appeal dated 27 August 2021. Additionally, the Appellant included the following 21 paragraphs as grounds of appeal:
“1. CORRUPT COMMISSIONER decision is the Error on the Face of the Law.
2. CORRUPT COMMISSIONER has no legal qualification to assess the costs.
3. CORRUPT COMMISSIONER didn’t refer the costs to the costs assessor for assessment when it was explicitly raised by the Appellant.
4. CORRUPT COMMISSIONER took a BRIBE to deliver this decision;
5. CORRUPT COMMISSIONER communicated directly with WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE) AND WHITE TROY PLUMMER or EMPLOYSURE LAW.
6. CORRUPT COMMISSIONER directed the Appellant to provide the cross-examination questions in writing to WHITE SARAH CHRISTIE in advance.
7. CORRUPT COMMISSIONER ordered the Appellant to cross-examine WHITE SARAH CHRISTIE in the middle of proceedings, that is, before filing the Respondents’ response.
8. CORRUPT COMMISSIONER answers the questions on behalf of WHITE SARAH CHRISTIE and puts words in WHITE SARAH CHRISTIE’s mouth at cross-examination of Christie.
9. CORRUPT COMMISSIONER ignored the FAIR WORK ACT 2009 and FAIR WORK REGULATIONS.
10. CORRUPT COMMISSIONER ignored the LEGAL PROFESSION UNIFORM LAW AND AUSTRALIAN CASE LAWS.
11. CORRUPT COMMISSIONER ignored the evidence provided by the Law Society NSW.
12. CORRUPT COMMISSIONER ignored the facts and evidence that the Respondent’s
Representative did the Evidence tampering, colluding with the witness, and throwing allegations without evidence on the Appellant.
13. THE WHITE RACIST COMMISSIONER is BIASED and delivered this decision to give favours and hide the misconduct of WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE) AND WHITE TROY PLUMMER – WHO COSIGNED THE FALSE SUBMISSIONS and breached the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
14. NAZI COMMISSIONER made this decision to suppress the victim’s voice. I am the victim in these proceedings.
15. Evidence Tampering by WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE).
16. Persuasion of Perjury by WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE).
17. WHITE SARAH CHRISTIE Colluded with the Witness, Ms Simrat Pal Kaur.
18. WHITE SARAH CHRISTIE provided the fake and tampered invoices.
19. WHITE SARAH CHRISTIE tempered the evidence by intentionally removing her signatures from emails that state her job title was Employment Relations Associate so that she could claim the rate of a Consultant.
20. Perjury by Mr Amit Pall in the proceedings.
21. In addition, there are Significant Errors of Fact in the decision given by the CORRUPT COMMISSIONER.”
(Emphasis as per the Form F7)
As outlined above, we have reviewed of the Appellant’s Outline of Submissions filed on 9 January 2023, observing that this document is divided into 17 parts and noting that part 1 is an introduction, part 16 purports to deal with public interest submissions and part 17 is said to be the conclusion.
We have previously observed that parts 2, 3 and 11-15 are submissions that the Appellant advanced or could have advanced in prosecuting the first appeal.
As to parts 4-10 of the Appellant’s Outline of Submissions filed on 9 January 2023, we will not attempt to summarise the submissions and will instead produce them in full:
“Part 4 - Persuasion of Perjury
18. I submit that on 9 March 2021, Sarah committed the persuasion of perjury at the examination in chief of Ms Simratpal Kaur.
19. I submit that On 9 March 2021, At examination- -IN-CHIEF BY MS CHRISTIE – Ms Kaur MS CHRISTIE: Thank you. Ms Kaur, …….. You’ve prepared and we’ve submitted a witness statement that you drafted back in October, is that correct?---Yes, that’s correct.
20. I submit that on 20 August 2021, Sarah filed the Form 6 Application for Costs, and at item number 24, page 2 of Schedule of Costs and disbursements dated 15 October 2020, Sarah is claiming that she had drafted the witness statement Draft witness statement of Ms Kaur.
21. I submit that the corrupt Commissioner took a bribe to hide the persuasion of perjury by Sarah in the proceedings though I had raised the issue of persuasion of perjury by Sarah and bring into Commissioner’s attention several times.
Part 5 - Evidence Tampering
22. I submit that Sarah did the evidence tampering by removing her signatures from her emails provided to the Commission with the Costs application submissions on 3 February 2022 by using the outlook editing tool with the intent to mislead the Commission and with a motive to gain the monetary benefit.
23. I submit that Sarah and Troy provided ten (10) invoices of Koala Investment Property Pty Ltd ACN 603 793 308 ABN 18 603 793 308 “Koala” to the Commission concerning these proceedings.
24. I submit that Sarah and Troy tampered with the invoices by replacing the word “Koala” with “Kaila”.
25. I submit that the corrupt Commissioner took a bribe to hide the misconduct of evidence tampering at the Commission by Sarah and Troy in the proceedings.
Part 6 - Invoices
26. I submit that the Commission and the Corrupt Commissioner have no invoices of the Respondent Kailash Lawyers And Consultants ACN 604 582 550 ABN 90 604 582 550 concerning costs.
27. I submit that the Commission and the Corrupt Commissioner only have the invoices that belong to a different company Koala Investment Property Pty Ltd ACN 603 793 308 ABN 18 603 793 308 “Koala”.
28. I submit that Koala is not a party to this proceeding and is not related to this matter.
29. I submit that the Corrupt Commissioner took a Bribe to award the costs of $36,398.05 plus GST without having any invoices of Kailash Lawyers And Consultants ACN 604 582 550 ABN 90 604 582 550.
Part 7 - Fake/Bogus Invoices
30. I submit that Sarah and Troy provided ten (10) invoices of Koala Investment Property Pty Ltd ACN 603 793 308 ABN 18 603 793 308 “Koala” to the Commission concerning these proceedings.
31. I submit that invoices 2 and 3 were created on Friday, 2 September 2022, at 3:11:38 PM. However, Sarah and Troy, employees of Employsure Law, claim that invoice two (2) was invoiced/created on 12 November 2020, and invoice three (3) was invoiced/created on 15 December 2020.
32. I submit that the corrupt Commissioner took a bribe to hide the misconduct of providing fake and bogus invoices by Sarah and Troy in the proceedings at the Commission.
Part 8 - Dishonesty - False Rates - Schedule of Costs
33. I submit that Sarah is a law graduate with the job title Employment Relations Associate from 15 September 2020 to 23 August 2021.
34. I submit that Sarah has no practising certificate to practice as a solicitor in Australia.
35. I submit that Sarah intentionally falsely claimed the solicitor scheduled rates and deliberately replaced the words of the Fair Work Regulations 2009 “at the discretion of the FWC” with “Higher discretionary rate” in the schedule of costs to mislead the Commission, with a motive to gain a collateral advantage and for a monetary benefit.
36. I submit that per s 678 of the Act, it is an offence to provide a false statement to the Commission.
37. I submit that the Corrupt Commissioner took a Bribe for not referring the matter to the costs assessor approved by the Law Society NSW for assessment when the Appellant explicitly raised it and brought it to the Commissioner’s attention concerning false costs/charges.
38. I submit that the Corrupt Commissioner took a Bribe to hide the misconduct of Sarah and Troy in relation to providing false information to the Commission and claiming fraudulent charges in the Schedule of Costs.
Part 9 - Corrupt Commissioner Interference at Cross-examination of Sarah Christie – 23 March 2022
39. I submit that Troy, Sarah and Employsure law formally withdrew from the proceedings on 30 December 2021 by providing notice Form F54 to the Commission.
40. However, I submit that the corrupt Commissioner allowed Troy Plummer “Troy” to represent Sarah on dated 22 March 2022 without any hearing though I opposed the representation on 21 March 2022. However, the corrupt Commissioner again allowed the representation by ignoring s596 of the Fair Work Act.
41. I submit that the corrupt Commissioner interfered in the cross-examination of Sarah, helped Sarah to give the answers and put words in Sarah’s mouth.
42. I submit the corrupt Commissioner did not allow me to ask questions from Sarah at the cross examination concerning the false rates charged by her.
43. I submit that the corrupt Commissioner directed me to provide the cross-examination questions in writing to Sarah in advance.
44. I submit that the corrupt Commissioner took a Bribe from Troy and Employsure Law to help Sarah at the cross-examination.
Part 10 – Corruption and Preferential Treatment to WHITE Sarah and WHITE Troy
45. I submit that corrupt commissioner Mckenna ignored the FAIR WORK ACT 2009 and FAIR WORK REGULATIONS, LEGAL PROFESSION UNIFORM LAW AND AUSTRALIAN CASE LAWS and the evidence provided by the Law Society NSW.
46. I submit that the corrupt Commissioner ignored the facts and evidence that the Respondent’s Representative did the Evidence tampering, colluding with the witness, and throwing allegations without evidence on the Appellant.
47. I submit that the corrupt Commissioner had communicated directly with Sarah (respondent representative) and Troy/ Employsure law.
48. I submit that the corrupt Commissioner knew that the respondents did not provide the proper disclosures and did not file the resubmissions raised by the corrupt Commissioner on dated 9 September 2022.
49. I submit that corrupt Commissioner Mckenna provided preferential treatment to WHITE Sarah and Troy and hid their number of misconducts in the proceedings.
50. I submit that corrupt commissioner Mckenna is racist and biased and took a bribe to hide the misconducts of the Respondent and Respondent’s representatives in the proceedings.
51. I submit that the corrupt Commissioner took a bribe to deliver the decision in favour of the Respondent.
52. I firmly believe the corrupt Commissioner does not have a higher school certificate (HSC), and the corrupt Commissioner is an HSC dropout.
53. I submit that the corrupt Commissioner has no legal qualification to assess the costs.
54. I submit that the corrupt Commissioner didn’t refer the costs to the costs assessor approved by Law Society NSW for assessment when it was explicitly raised by the Appellant.”
At the hearing, the oral submissions of the Appellant comprised him reading the Outline of Submissions document filed on 9 January 2023 in its entirety.
Principles on Appeal
We have previously outlined the principles on appeal at [19] – [23] above.
Consideration
Appeal ground 1 does not rise beyond the level of a bald, generalised assertion and we do not consider it raises an arguable case of error. Nor do appeal grounds 2 and 3. Appeal ground 2 does not assert error, while appeal ground 3 makes the entirely incorrect assertion that the Commissioner was required to refer costs application to “the costs assessor for assessment.”
Appeal ground 4 asserts, without a scintilla of evidence, that the Commissioner took a bribe to deliver the Costs Quantification Decision and the Appellant repeats this assertion, without basis, in each of parts 4-10 of the Outline of Submissions document filed on 9 January 2023.
Appeal ground 5 asserts the Commissioner communicated directly with the Respondent’s representatives. Particulars relating to such communication are outlined in parts 11 and 12 of the Outline of Submissions document filed on 9 January 2023.[49] These parts comprise submissions that the Appellant advanced or could have advanced in prosecuting the first appeal. We have noted that the Commissioner communicated with the parties (through her Chambers) on a number of occasions, stipulating the requirement for the parties to copy the other when corresponding with her Chambers[50] and moreover, that the Commissioner maintained a practice of responding to correspondence which had not been copied to the other party by sending a reply copying in the other party, so that the other party received the original correspondence.
As regards the allegation of the Appellant that the Respondent’s representative emailed a Schedule of Agreed Facts to the Commissioner on 20 April 2021 without his knowledge or consent, we observe that the email in question was copied to the Appellant’s email address when first sent to the Commissioner. The Appellant also alleged that the Commissioner was dishonest and corrupt in communication to the parties because in an email sent on 23 August 2021, the Commissioner had asserted that Respondent’s representative had not sent numerous emails without copying him. The Appellant alleged that the Respondent sent emails to the Commissioner dated 15 March 2021, 26 March 2021 and 20 April 2021 without copying him in. However, the email from the Commissioner’s Chambers dated 23 August 2021 outlined that each of those emails had been copied to the Appellant in correspondence from the Commissioner’s Chambers and evidence of this was provided.
As to the allegation regarding an email dated 23 December 2021, this email sent by Employsure Law was for the purpose of lodging a Form F54 – Notice that lawyer or paid agent has ceased to act for a person and it was forwarded to the Appellant by the Commissioner’s Associate on 30 December 2021.[51]
Accordingly, it is our view that appeal ground 5, to the extent it asserts a failure to afford procedural fairness, is not reasonably arguable.
Appeal ground 6 asserts the Commissioner directed the Appellant to provide cross-examination questions in writing to Ms Christie in advance. We have dealt with this assertion in [36] above and repeat that we have not been directed to any evidence of the Commissioner having directed the Appellant to do so. This ground of appeal discloses no arguable case of error.
Appeal ground 7 asserts the Commissioner ordered the Appellant to cross-examine Ms Christie “in the middle of proceedings, that is, before filing the Respondents’ response.” It is not clear what error is asserted by this ground but we observe that there was no order that the Appellant cross-examine Ms Christie and note that this cross examination in fact arose in response to the Appellant’s submission that procedural fairness required that he be afforded the opportunity to do so.[52] We also observe that the Commissioner afforded the Appellant the opportunity to file further submissions in writing following this cross-examination,[53] subsequently making directions facilitating this. We therefore do not consider that this ground, to the extent it asserts a failure to afford procedural fairness, is reasonably arguable.
Appeal ground 8 and Part 9 of the Outline of Submissions document filed on 9 January 2023 assert the Commissioner gave answers on behalf of Ms Christie and put words in her mouth during her cross-examination. We have dealt with these assertions in [35] above and confirm that our review of the transcript of the cross-examination of Ms Christie has not persuaded us that the submissions that the Commissioner interfered with the cross-examination of Ms Christie, helped her to give answers and ‘put words in her mouth’ are reasonably arguable. We also confirm our opinion that, contrary to the assertions of the Appellant, the Commissioner played a constructive role in clarifying and confirming particular questions the Appellant was seeking to put to Ms Christie so that she could provide an answer.[54] We have otherwise dealt with the Appellant’s complaint regarding the grant of representation above at [33].
Appeal grounds 9, 10 and 11 assert the Commissioner ignored the Act, the Fair Work Regulations 2009 (Regulations), the Legal Profession Uniform law, ‘Australian Case laws’ and the evidence provided by the Law Society of NSW. In the absence of particulars, we are not persuaded that these grounds are reasonably arguable.
Appeal grounds 12,13 and 15-19 assert various errors of fact, in that the Commissioner ignored evidence of evidence tampering, collusion, misconduct, perjury and falsified evidence. This contention is repeated in Part 10 of the Appellant’s Outline of Submissions filed on 9 January 2023. Further, by part 4 of the Appellant’s Outline of Submissions filed on 9 January 2023, the Appellant seeks to re-agitate an allegation of perjury that he claims occurred during the hearing in March 2021 in order to attack the Respondent’s claim for costs in respect of the drafting of a witness statement of Ms Simrat Pal Kaur. The allegation is not sustainable having regard to Ms Kaur’s evidence under cross-examination on 9 March 2021, that her statement was prepared by the lawyers based on the content she provided.[55] Part 13 of the Appellant’s Outline of Submissions filed on 9 January 2023 comprise submissions that the Appellant either advanced or could have advanced in prosecuting the first appeal.
By Parts 5-7 of the Outline of Submissions document filed on 9 January 2023, the Appellant asserts evidence tampering in relation to the Employsure Law invoices, that there were no invoices relation to the Respondent and further, that there were fake/bogus invoices submitted by Employsure Law. As to these assertions, we have outlined above at [44] and [45] the manner in which the Commissioner dealt with the Employsure Law invoices in the Costs Quantification Decision. It is apparent that the Commissioner engaged with the Appellant’s allegation regarding fake/bogus invoices and the Respondent’s response,[56] and was ultimately satisfied the invoices in questions did not disclose costs that were incurred unreasonably.[57] We consider the findings the Commissioner made were open to her based on the evidence and submissions.
In Part 8 of the Outline of Submissions document filed on 9 January 2023, the Appellant asserts the Respondent falsely claimed rates at the solicitor rate for work performed by Ms Christie and sought to mislead the Commission. As to this, the Commissioner was in no doubt as to the status of Ms Christie, as the following passage from the Costs Decision reveals:
“Ms Christie is a law graduate but was not admitted as a solicitor around the time relevant to the work undertaken for Kailash in relation to Mr Patial’s application for an unfair dismissal remedy. There is no issue that Ms Christie was not a solicitor, i.e., she was not, within the meaning defined in s.12 of the Act, a person who was admitted to the legal profession by a Supreme Court of a State or Territory. For the avoidance of doubt, given Mr Patial’s submissions that Ms Christie intentionally misled the Commission by suggesting she was a lawyer/solicitor, she did nothing of the sort. Indeed, I sought clarification from Ms Christie around the outset of the first listing on whether she was a lawyer/solicitor; she confirmed to me she was not a solicitor, or at least not yet.”[58]
Further, we do not accept the submission that any replacement of the words “at the discretion of the FWC” which appear throughout the Schedule 3.1 – Schedule of Costs in the Regulations with “Higher discretionary rate” was prone to mislead. Appeal grounds 12,13 and 15-19 disclose no arguable case of error.
Appeal ground 14 is simply a heinous insult.
Appeal ground 20 alleges perjury by Mr Pall during the proceedings and the Appellant seeks to make good this allegation with particulars outlined in Part 2 of the Outline of Submissions document filed on 9 January 2023. Appeal ground 21 is a broad assertion that there are significant errors of fact in the Costs Quantification Decision.
As we have observed above at [49], Part 2 contains submissions regarding alleged perjury that the Appellant could have advanced in prosecuting the first appeal against the Substantive Decision and the Substantive Order and yet the Form F7 – Notice of Appeal dated 27 August 2021 contained no reference to such an allegation. As regards the assertion that there are significant errors of fact in the Costs Quantification Decision, we have already dealt with the Appellant’s assertions regarding the Employsure Law invoices and the Commissioner’s findings.
To the extent that the Appellant seeks to argue the existence of significant errors of fact relating to any of the Commissioner’s findings in the Substantive Decision through appeal grounds 20 and 21, the Appellant appears to be seeking to prosecute a second appeal and present a different case to the one he put before the Full Bench in the first appeal. We have earlier dealt with the Appellants attempt to appeal the Appeal Decision.
As to the public interest, the Form F7 and Part 16 of the Outline of Submissions document filed on 9 January 2023 outline public interest grounds and submissions. The public interest matters are set out in 30 paragraphs in the Form F7, of which 14 were contained in the Form F7 – Notice of Appeal dated 27 August 2021 filed for the first appeal against the Substantive Decision and the Substantive Order. As mentioned above at [16], the public interest submissions in Part 16 largely repeat, in summary form, submissions made by the Appellant in Parts 2-15 and Part 17 of the Outline of Submissions document filed on 9 January 2023 includes what might be regarded as further public interest submissions. In large part, the public interest grounds and submissions outlined by the Appellant relate to the Substantive Decision.
We have decided to refuse permission to appeal the Costs Quantification Decision because the public interest is not engaged.
First and foremost, the decision does not manifest an injustice. The Appellant had every opportunity to advance a fulsome case against the quantum of costs claimed by the Respondent but declined to do so, instead outlining in his written submissions:
“I submit that there is no point in writing the submissions; use my resources and valuable time because you are biased and corrupt; you are already persuaded by the WHITE CHRISTIE AND WHITE PLUMMER and have an understanding with them, and I am damn sure you will not find anything even if the evidence speaks for itself.”[59]
Procedural fairness requires the Commission to give a party a reasonable opportunity to present its case, but not to ensure that the party takes best advantage of that opportunity.[60] Further, as the High Court stated in Metwally v University of Wollongong:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.” [61]
Metwally v University of Wollongong established that unless there are the most exceptional circumstances giving rise to a compelling argument to the contrary, it is contrary to the public interest to allow a party to run new arguments on appeal. There is no such compelling argument in this case. The Commissioner determined to make the Costs Order in the amount sought by the Respondent, given the absence of anything relevant advanced by the Appellant to contest the claimed monetary amount and because she concluded that the costs claimed did not disclose unreasonableness in the work undertaken or in the costs invoiced.
Secondly, the outcome of the Costs Quantification Decision is not counterintuitive. Thirdly, there is no diversity of decisions on this topic at first instance such that appellate guidance from this Ful Bench is required.
Importantly and ultimately, having heard the application for permission to appeal in relation to the Costs Quantification Decision, and having considered the appeal grounds and submissions pertaining to it, we have concluded that none of them are reasonably arguable.
Conclusion – Costs Quantification Decision and Costs Order
None of the grounds of appeal are reasonably arguable and the public interest is not engaged. Permission to appeal the Costs Quantification Decision and Costs Order is refused.
DISPOSITION
The appeals are determined as follows:
1) To the extent the Appellant seeks permission to appeal the Appeal Decision, permission to appeal is refused.
2) The second appeals against the Substantive Decision, the Substantive Order and the appeal against the Costs Decision were filed beyond the time prescribed by rule 56(2)(a), and an extension of time has been refused. The appeals against the Substantive Decision, the Substantive Order and the Costs Decision are therefore incompetent and are dismissed.
3) Permission to appeal the Costs Quantification Decision and Costs Order is refused.
The Appellant remains subject to the Costs Order which requires him to pay the Respondent costs and disbursements in the amount of $36,398.05 plus GST.
FINAL OBSERVATIONS
It is necessary to comment on the manner in which the various proceedings before the Commission have been conducted.
The Appellant has prosecuted these appeals before us in a manner that is entirely different to the manner in which he conducted his first appeal against the Substantive Decision and the Substantive Order.[62] The Form F7 – Notice of Appeal dated 27 August 2021 that was filed by the Appellant when he lodged his first appeal against the Substantive Decision and the Substantive Order was primarily focussed on the Commissioner’s conclusion that he had not been in an employer/employee relationship with the Respondent and in that proceeding, the Appellant asserted there were various errors of fact in the Substantive Decision and that the Commissioner misapplied the relevant law in relation to that question. However, having not succeeded in the first appeal, the Appellant’s approach has steeply descended into one of levelling accusations against the Commissioner of having either engaged in, or been complicit with bribery, corruption, perjury, evidence tampering and dishonesty during the proceedings.
There has not been a single piece of evidence produced by the Appellant is support of his allegations against the Commissioner. It is therefore a matter of most serious concern that the Appellant persisted in making baseless allegations before us, despite having earlier been cautioned in relation to his conduct by both the Commissioner and Deputy President O’Neill. In the Form F7 alone, he made over 50 references to “the corrupt Commissioner” and at the hearing before us, the Appellant opened with the following:
“I submit that the Fair Work Commission has no evidence that Mc Kenna C was not racist, not dishonest, not corrupt and did not take a bribe in these proceedings.”[63]
Despite the conduct of the Appellant, the Commissioner has conducted herself with admirable restraint. The Commissioner’s conduct during the proceedings has been marked by her patience, commitment to ensuring both parties were afforded procedural fairness and an adherence to the impartial discharge of her duties according to law. Even after having been subjected to numerous unsubstantiated slurs from the Appellant, the Commissioner had the magnanimity to say:
“I add that were it not for my concerns about Mr Patial’s psychological well-being and/or capacity, with such concerns arising from the content and tenor of aspects of his oral and written submissions (with further concerns arising particularly from parts of the troubling content of emailed correspondence that Mr Patial sent to the Prime Minister, The Hon Anthony Albanese MP, and which Mr Patial copied to multiple recipients - the contents of which are unnecessary/irrelevant to repeat in this decision), I would otherwise have given consideration to further steps that I may have taken in relation to the contumelious assertions repeatedly made by Mr Patial over the course of the costs application proceedings.”[64]
Despite these previous warnings, the Appellant has persisted with his allegations. Unless he is experiencing some undisclosed, underlying issues that are impacting on his professional judgement, it is inconceivable that the Appellant, a practising lawyer in the State of New South Wales, would consider he has conducted himself appropriately. We consider the conduct of the Appellant raises serious issues of concern and intend to take the necessary steps to alert the Law Society of New South Wales in relation to these proceedings.
DEPUTY PRESIDENT
Appearances:
Mr P. Patial on his own behalf.
Mr A. Pall for the Respondent.
Hearing details:
2023.
Melbourne (via video-link):
7 February.
[1] [2022] FWC 2721.
[2] PR747425.
[3] [2022] FWC 1449.
[4] [2021] FWC 4167 (reissued on 24 August 2021 after corrections).
[5] PR732600.
[6] [2021] FWCFB 6055.
[7] [2022] FWC 3199.
[8] Transcript dated 7 February 2023 at PN 136.
[9] Jeremy Snyder v Helena College Council, Inc. T/A Helena College[2019] FWCFB 815 at [26] and Jeremy Snyder v Helena College Council, Inc. T/A Helena College[2019] FWCFB 7398 at [28].
[10] Rule 56(2) of the Fair Work Commission Rules 2013.
[11] Transcript dated 7 February 2023 at PN 173 – 180.
[12] Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3] and Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 at [10].
[13] See for example Fox v Kangan TAFE, Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Service Division Pty Ltd T/A Logan City Electrical v Antonarkis[2018] FWCFB 3815.
[14] Transcript dated 7 February 2023 at PN 174.
[15] The Commission’s Appeal proceedings practice note at paragraphs [8], [21] and [22].
[16] [2022] FWC 1449 at [109].
[17] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[18] (2011) 192 FCR 78.
[19] Ibid at [43].
[20] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[21] [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[22] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[23] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[24] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[25] [2019] FWCFB 815 at [26].
[26] As outlined above at [5].
[27] [2021] FWC 4167 at [82].
[28] Ibid at [84].
[29] Ibid at [91].
[30] [2021] FWCFB 6055 at [25].
[31] Ibid at [27] and [28].
[32] Ibid at [29] and [30].
[33] See also Part 14 of the Appellant’s Outline of Submissions filed on 9 January 2023.
[34] [2022] FWC 1449 at [89].
[35] Transcript 23 March 2022 at PN 224.
[36] Ibid at PN 365-368, PN 381, PN 418-422, PN 441-442 and PN532-534.
[37] Ibid at PN 479, PN 485, PN 487 and PN 502.
[38] Ibid at PN 786-787.
[39] Ibid at PN 799-802.
[40] [2022] FWC 2721- Costs Quantification Decision at [3]-[5].
[41] Ibid at [6].
[42] Ibid at [10] – [13].
[43] Ibid at [14] – [20].
[44] See Tax Invoices of Employsure Law- Appeal Book at pp 981-998.
[45] Ibid.
[46] [2022] FWC 2721- Costs Quantification Decision at [20].
[47] As claimed in the Respondents Submissions dated 9 September 2022 and Reply Submissions dated 7 October 2022.
[48] 28 October 2022.
[49] See also Part 10 of the Appellant’s Outline of Submissions filed on 9 January 2023.
[50] For example, in email dated 23 August 2021 and AB at 968 – email from Commissioner McKenna’s Chambers to parties dated 22 March 2022.
[51] AB at 975.
[52] AB at 508 - Appellant’s Submissions dated 24 February 2023 at [16] and [17].
[53] Transcript 23 March 2022 at PN 799-802.
[54] Ibid at PN 365-368, PN 381, PN 418-422, PN 441-442 and PN532-534.
[55]AB at 212- Transcript 9 March 2021 at PN 877.
[56] [2022] FWC 2721- Costs Quantification Decision at [5].
[57] Ibid at [13].
[58] [2022] FWC 1449 - Costs Decision at [87].
[59] AB at 493 - Appellants submissions dated 23 September 2022 at [12].
[60] Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13, 84 ALR 208 at 220, [19] per Gaudron J; Sullivan v Department of Transport [1978] FCA 48, 20 ALR 323 at 343 per Deane J; Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], Soames v Secretary, Department of Social Services [2014] FCA 295 at [41].
[61] (1985) 60 ALR 68 at [71].
[62] C2021/5106
[63] Transcript 7 February 2023 at PN 6.
[64] [2022] FWC 2721 at [9].
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