The Archer Hotel T/A Huntsman Hotel v Samuel O'Leary

[2018] FWC 5824

[2018] FWC 5824

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

The Archer Hotel T/A Huntsman Hotel
v
Samuel O’Leary
(C2018/4960)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 SEPTEMBER 2018

Appeal against decision of Commissioner Platt at Adelaide on 6 and 7 September 2018 in matter number U2018/6876; application for stay order; balance of convenience discussed; stay order application refused.

[1] On 10 September 2018 I refused an application to stay certain procedural decisions made by Commissioner Platt in connection with an unfair dismissal remedy application made by Mr Samuel O’Leary (Respondent). These are my reasons for the decision.

[2] By an amended Notice of Appeal, Huntsman Hotel Pty Ltd (Appellant) seeks permission to appeal and appeals relevantly two decisions made by the Commissioner in connection with an application by the Respondent under section 394 of the Fair Work Act 2009 (Cth) (Act). The relevant background to the application for a stay of the decisions may be shortly stated. A detailed summary of the relevant background is set out in the reasons for decision delivered by the Commission on 7 September 2018. 1 The Commissioner made certain directions for the conduct of the proceedings. The directions required the Appellant inter alia to file an outline of submissions, statements of evidence and copies of any document upon which it intended to rely by 23 August 2018. The Appellant was subsequently allowed an extension of time until 9.00am on 27 August 2018 to comply with the directions.

[3] It is uncontroversial that the Respondent did not comply with the directions, filed no material and did not communicate with the chambers of the Commissioner. Consequently, the Commissioner listed the proceeding for a directions hearing on 6 September 2018. The Respondent had not, at the time the directions hearing was conducted, filed any material. There was no explanation provided by the Respondent for its failure to comply with the directions during the hearing on 6 September 2018. At that hearing the Respondent sought that the hearing into the merits of the substantive claim brought by the Respondent, which was scheduled to commence on 10 September 2018, be vacated. The Commissioner rejected that application.

[4] The Respondent applied for a direction that the Appellant not be permitted to file any further material. The Commissioner decided to hear that application the following day. Before that hearing commenced, the Appellant purported to file, without seeking or being granted leave to file, an outline of submissions and two witness statements together with some documents attached to the witness statements. After hearing the parties on the application, the Commissioner expressed a preliminary view that he was inclined to grant the application but would advise the parties of his final decision. Later that day, the Commissioner published a decision on which he decided to grant the Respondent’s application, thereby in effect refusing to allow the filing of the material which it attempted to file including its acceptance as evidence in the substantive proceeding.

[5] A Notice of Appeal to which the earlier referred to amended notice of appeal relates was lodged on 7 September 2018 by the Appellant.

[6] The amended grounds of appeal are as follows:

“1. The Commissioner erred in the exercise of his discretion to refuse the appellant’s application to adjourn the hearing listed to commence on 10 September 2018 (“the Trial”) in that he failed to have proper or any regard for the following:

1.1. The Applicant would suffer no prejudice if the Trial had been adjourned that could not otherwise have been assuaged by an order for costs.

1.2. The Respondent was in a position to file witness statements and an outline of submissions by 7 September 2018.

1.3. That the Applicant did not identify any prejudice which could not be ameliorated by an order for costs.

1.4. The interests of justice in enabling the Respondent to present its case and the Commissioner placed excessive significance on case flow management principles.

2. The Commissioner erred in the exercise of his discretion in entertaining the application and refusing to allow the appellant to present sworn evidence in opposition to the Applicant’s application to have the matter proceed to trial on the basis that the Respondent be denied any opportunity to present any evidence at trial.

2.1. The Applicant would suffer no prejudice if the Respondent had been granted permission to rely on its sworn evidence in opposition to the Applicant’s application.

2.2. If the Respondent was required to proceed to trial without being able to rely upon sworn evidence at the Trial, it would not have been able to have called any witnesses in support of its opposition to the relief sought by the respondent in the proceedings and would suffer significant prejudice.

2.3. The Applicant did not cite any legal authority which supported the course of action that the Commission was being invited to take and the decisions cited only supported the principles of case flow management.

2.4. The effect of the refusal to allow the appellant to rely on the sworn evidence at the Trial would have been contrary to the rules of natural justice and procedural fairness.

2.5. The interests of justice and the Commissioner placed excessive significance on case flow management principles.

2.6. The Respondent acknowledged that an adjournment of the trial may result in the Respondent being required to pay the Applicants costs thrown away.

3. That the Decision of Commissioner Platt made on 6 September 2018 precluding the Respondent from adducing evidence at the trial to commence on 10 September 2018 before Commissioner Platt is:

3.1. Contrary to the requirements of procedural fairness

3.2. A decision no reasonable decision-maker could reach

3.3. An abuse of the processes of the Commission

In circumstances where:

3.4. The Commissioner has made a finding that the behavior of the Respondent is contemptuous (based presumably on the provision of the witness statements 9 business days after the date provided for in the order).

3.5. The Respondents two witness statements were filed prior to 9.30am on Friday 7 September 2018 and comprised 3 pages and eight pages respectively plus annexures.

3.6. The Commissioner at [25] accepted or at least did not specifically reject the submission that “portions of the evidence in the two statements were not available as the deponents did not have access to some electronic files” prior to 9am on Monday 27 August 2018

3.7. The Commissioner did not make any finding about whether the trial would need to be adjourned

3.8. The Commissioner at [44] did not make any finding about whether costs would be an adequate remedy other than to say such a course was not appropriate.”

[7] The stay order sought is expressed in the following terms:

“1. A stay of these proceedings pending the hearing and determination of appeals from decisions of Commissioner Platt made on 6 September 2018 and 7 September 2018 and subject of the amended Notice of Appeal.

2. A stay of these proceedings pending a determination of the appeal from the Commission’s decision to accepts (sic) the Applicant’s application that the Respondent be forced to proceed to trial but denied the opportunity to present any evidence at trial.”

[8] It is plainly the case that the power to issue a stay does not extend to a stay of proceedings. A stay order is to be directed to the operation of a decision. As a stay order is directed to staying the operation of the whole or part of a decision on such terms and conditions as the Commission may determine, until the hearing and determination of the appeal or further order. 2 This was accepted by Counsel for the Appellant at the hearing of the stay application.3

[9] A person aggrieved by a decision made by a single member of the Commission may only appeal a decision with the permission of the Commission. 4 

[10] An appeal of a decision is not as of right and permission to appeal must first be obtained. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5  The public interest is not satisfied simply by the identification of error, or a preference for a different result.6 Some of the circumstances in which the public interest might be attracted were discussed in GlaxoSmithKline Australia Pty Ltd v Makin7 and need not be rehearsed here.

[11] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified but examples of considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. Procedural decisions such as those subject to this appeal relating to an unfair dismissal remedy application are caught by section 400 and thus by section 604(2). 8

[12] The principles that are to be applied in considering whether to grant a stay order should, in my view, be applied against the statutory constraints on appeals of this kind noted above. Moreover, this tribunal and its predecessor have approached applications for a stay on the basis that, unless otherwise established, there is a presumption that the order or decision that is subject to appeal has been regularly made. 9  It is well settled that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal, and that the balance of convenience favours the granting of a stay order.10 There is no controversy about this as between the parties.

[13] The first decision, the operation of which is sought to be stayed, concerns a refusal to grant adjournment of the proceeding (adjournment decision). The adjournment decision was made in circumstances where the Appellant had failed to comply with directions to file material without explanation and without communication with the chambers of the Commissioner. It had made the application for an adjournment only when called to a directions hearing initiated by the Commissioner, at which no explanation for the failure to comply with directions was proffered. In those circumstances, it is hardly surprising that an adjournment application made by the Appellant on the eve of the hearing was rejected. It is apparent that the Commissioner’s decision to refuse the application for an adjournment was influenced by the lateness of the application and its proximity to the hearing, that is, it was made one business day before the commencement of the hearing. 11 The Commission also had regard to the Appellant’s failure to provide any explanation for its failure to comply with the direction, and prejudice to the Respondent.12 The Appellant’s contention, in its amended Notice of Appeal that the Respondent would not suffer prejudice if the adjournment was granted, is respectfully a hollow one. It would seem to me that the prejudice to the Respondent is self-evident. The determination of the Respondent’s application for an unfair dismissal remedy would be delayed in circumstances where the Respondent complied with directions and was relevantly an innocent party. Justice delayed is or may be justice denied.

[14] I am therefore not persuaded by either the grounds of appeal or the submissions made by the Appellant that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal in respect of the adjournment decision.

[15] The second decision, the operation of which is sought to be stayed, concerns the refusal by the Commissioner to allow the Respondent in effect to lead any evidence at the hearing of the Respondent’s application for an unfair dismissal remedy (admission of evidence decision). The effect of the decision, if unaltered, will be to deprive the Appellant of any opportunity to lead any evidence contradicting the Respondent’s case. This is a significant step and one which may impact on the outcome of the ultimate case. The appeal against the admission of evidence decision self-evidently raises procedural fairness grounds and on the basis of the amended grounds of appeal and the submissions made before me, I am persuaded there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal in respect of the admission of evidence decision.

[16] Turning then to the question whether the balance of convenience favours the grant of a stay order in the circumstances of this case. I am not satisfied that it does so for a number of reasons.

[17] I accept that it may well be the case that if a stay of the operation of the admission of evidence decision is not granted, the substantive appeal, assuming permission to appeal were granted, will be rendered nugatory. However, whether the failure to grant a stay order renders an appeal nugatory is but one factor that is to be considered in the overall balance of convenience exercise. In this case, there are a number of considerations which weigh against the balance of convenience favouring a stay. First, there is the consistent position of the Appeal Benches of the Commission of discouraging appeals against procedural decisions made by Members at first instance. This appeal is concerned with a procedural ruling about the admissibility of evidence. The decision was made in circumstances where there was no real or persuasive explanation for the delay proffered, nor was there an explanation for the Respondent’s failure to seek a further extension of time beyond the first extension granted for the filing of the material. 

[18] Secondly, it seems to me that the admission of evidence decision, in some, or perhaps in all respects, is capable of being altered by the Commissioner on application during the conduct of the hearing. An application might be made, for example during cross-examination of the Respondent, if particular documents to which the Appellant needs to refer can be identified by the Respondent and/or when those documents are put to the Respondent.

[19] Thirdly, a stay order, if granted, would effectively operate as an adjournment of the proceedings before the Commissioner.  An application to that effect was rejected by the Commissioner and, as I already indicated, I am not persuaded in the circumstances that the Appellant has established an arguable case with some prospects in respect in respect of permission to appeal and the merits of the appeal against the adjournment decision.

[20] Fourthly, although a refusal to grant a stay order might render the appeal nugatory, it does not ultimately render nugatory the Appellant’s right to appeal and/or its right in any such appeal to rely upon the very grounds it seeks to agitate in this appeal in the event that the Commissioner refuses an application to alter some aspects of his procedural ruling during the course of the hearing or alternatively, makes findings or reaches a conclusion adverse to the interests of the Appellant.

[21] During the course of oral argument in the stay application proceeding, I raised the prospect of attaching a condition to any stay order which would be to the effect that the Appellant meet the Respondent’s costs thrown away. I have given consideration to whether the attaching of a condition as to costs might be a significant factor in swinging the balance of convenience the other way, but ultimately I do not consider that attaching such a condition would outweigh the other factors and, in particular, would not outweigh the fact that a stay order would effectively operate as an adjournment of the proceeding in the circumstances to which I have referred.

[22] The application for a stay order staying the operation of the adjournment decision and of the admission of evidence decision is refused. 

DEPUTY PRESIDENT

Appearances:

R Gray of Counsel for the Appellant.

A Wells of Counsel for the Respondent.

Hearing details:

2018.

Melbourne and Adelaide (by video):

September 10.

Printed by authority of the Commonwealth Government Printer

<PR700449>

 1   [2018] FWC 5670

 2   See section 606(1)

 3   Transcript PN 11 – PN 12

 4   Section 604(1)

 5   O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied v Lawler [2011] FCAFC 54 at [44]-[46]

 6   GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

 7 (2010) 197 IR 266 at [27]

 8   See for example Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 4552 at [9] – [11]

 9   See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) at [6]

 10   See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal; see for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds, [2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty Ltd v Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J

 11   [2018] FWC 5670 at [17]

 12   Ibid