1
Fair Work Act 2009
s 604 - Appeal of decisions
Daniel King and others
v
Patrick Projects Pty Ltd
(C2016/3987)
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMISSIONER SAUNDERS
SYDNEY, 27 JULY 2016
Appeal against a Decision of Senior Deputy President Drake in Sydney on 27 June 2016 in
matters U2014/982, U2014/983, U2014/1008, U2014/1059, U2014/5970 and U2014/7097 –
interlocutory decision – public interest not enlivened – permission to appeal refused.
BACKGROUND
[1] This decision will determine an application for permission to appeal in relation to a
Notice of Appeal, filed on 3 June 2016, by Mr Daniel King, Mr Jason Deeney, Mr
Christopher Hughes, Mr Richard Park, Mr Denis Seiffert and Mr Christopher Strauss (the
self-styled ‘concurrent applicants’ or the ‘appellants’) against a decision of Senior Deputy
President Drake on 27 June 2016 in matters U2014/982, U2014/983, U2014/1008,
U2014/1059, U2014/7097 and U2014/5970 (the ‘Decision’). Her Honour’s Decision arose in
the context of six unfair dismissal applications filed by each of the appellants, under s 394 of
the Fair Work Act 2009 (the ‘Act’) following their dismissals for reasons of redundancy by
Patrick Projects Pty Ltd (the ‘respondent’) in March 2014. Relevantly, Her Honour has listed
the six applications for arbitration between 8 and 11 August 2016 in Perth (the ‘substantive
proceedings’).
[2] In preparation for the hearing next month, including directions for the filing of
evidence and materials upon which both parties rely (which has now been completed), Her
Honour was required to consider an application by the respondent, under s 596 of the Act, that
it be granted permission to be represented by a lawyer in the substantive proceedings. On 12
April 2016, in a separate ruling concerning orders to produce documents sought by the
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DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 5069
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appellants, her Honour also ordered that the parties file written submissions concerning the
application by the respondent for permission to be represented by a lawyer.
[3] Both parties filed detailed submissions and the respondent relied on a witness
statement of Ms Elizabeth Ferrier, General Manager, Industrial Relations, Asciano (the parent
Company). We note that there was no request by the appellants to cross examine Ms Ferrier.
Ms Ferrier’s evidence was therefore uncontested. On 18 May 2016, Her Honour advised the
parties by email as follows:
‘I have considered your application that I not allow legal representation of the
respondent at the hearing of the applications before me.
I am persuaded that the respondent should be allowed to be represented.
Please provide any dates in the next three months which would be unavailable to the
applications for a hearing.’
It is from this Decision that the appellants have sought to appeal.
[4] On 14 June 2016, the parties were advised that this Full Bench intended to list the
appellants’ appeal for permission to appeal only on 12 July 2016. Associated directions were
issued, including a direction that any party who wished to be represented by a lawyer or paid
agent, was to file and serve a one page document setting out the reasons why permission
should be granted by the Full Bench. Submissions were received from the respondent seeking
permission to be represented by a lawyer and from the appellants opposing the respondent’s
application ‘in any and all proceedings’.
[5] On 8 July 2016, the Full Bench advised the parties that permission sought by the
respondent to be represented by a lawyer was refused. Our reasons for that refusal were that
the matter before us, being an application for permission to appeal an interlocutory decision,
was of specific and limited compass, which did not raise any particular complexity (s
596(2)(a)). Furthermore, no issues of unfairness to the respondent would arise if it were not
represented (ss 596(2)(b), (c)). Consequently we were not satisfied that any of the
circumstances in ss 596(2) arose.’
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[6] Earlier, on 27 June 2016, Her Honour provided further reasons for her Decision of 18
May 2016 (see para [3] above). In Jason Deeney; Richard Park; Christopher Hughes; Denis
Seiffert; Christopher Strauss and Mr Daniel King v Patrick Projects Pty Ltd [2016] FWC
4189, Her Honour said at paras [5]-[8]:
‘[5] Section 596 of the Act states that the Fair Work Commission may grant permission
to be represented by a lawyer or paid agent if it would allow the matter to be dealt with
more efficiently, taking into account the complexity of the matter.
[6] There are six applications. The basis of the applications vary. The facts are
different.
[7] I considered the requirements of s.596 of the Act and the material before me.
[8] I determined that the applications would be dealt with more efficiently, taking into
account the complexity of each application, if permission to be represented by a
lawyer was granted.
[7] We note that on the day prior to the appeal hearing, the appellants filed an application
for directions on procedure, which, inter alia, requested this Full Bench to hear and determine
matters arising under ss 678 and 677 of the Act (False and Misleading Evidence and Offences
in Relation to Appearing Before the Commission). There can be little doubt that this
application relates to the evidence for the substantive proceedings before Her Honour. In the
application made in the Form F48, it was said that ‘the respondent, its officers, employees and
agents’ were involved in ‘multiple counts of giving false and misleading evidence and failing
to produce documents’. The application sought directions from the Full Bench that the
substantive proceedings be vacated until the ss 678 and 677 matters are determined. We do
not intend to issue such directions. Applications under ss 678 and 677 of the Act cannot be
determined by the Commission, but only by a Court of competent jurisdiction. As we do not
understand there to be any current application before a Court in respect to these allegations,
we do not intend to take this matter any further. We turn now to the present appeal.
History of the proceedings involving the appellants
[8] The Appeal Book lodged by the appellants included a number of earlier Decisions of
the Commission, dating back to 30 September 2014. While it is not entirely clear why these
decisions, including transcript from a Full Bench proceeding in 2015, are appropriate for
inclusion in the Appeal Book for this appeal, this material nevertheless provides context to the
substantive proceedings before Her Honour next month. We have read this material. Set out
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below is a short summary of the two year history of various proceedings, in which the
appellants have been direct parties and which have all arisen in the context of their original
unfair dismissal applications.
[9] All of the appellants were made redundant on 20 March 2014. Mr Strauss also faced
allegations of serious misconduct and was dismissed on 18 March 2014. The present unfair
dismissal applications were lodged by the six appellants shortly thereafter. The appellants’
redundancies arose from a wider redundancy program initiated by the respondent in 2013 and
about which dispute proceedings were lodged by the Maritime Union of Australia (MUA or
the ‘Union’). After three conciliation conferences, Commissioner Cloghan issued a consent
order on 22 July 2013 [PR539220]. This order was appealed by the appellants in 2015.
[10] On 28 April 2014, the appellants made an application to have the Commission deal
with a dispute in accordance with the dispute settlement procedure under the Patrick Projects
Pty Ltd AMC Cargo Handling Agreement 2012–2015 (the ‘Agreement’). Similarly, this
dispute concerned the appellants’ redundancies on 20 March 2014. The respondent raised two
jurisdictional objections to the dispute being determined by the Commission; namely, whether
the appellants had standing to bring the application and whether the dispute was able to be
determined under cl 13 of the Agreement. After considering the written submissions of the
parties, in a decision on 14 October 2014, Cloghan C found that the Commission firstly, had
no power to deal with the application, as the appellants were no longer employed when the
application was filed, and therefore were not parties to the Agreement. Secondly, the
provisions of cl 13 had not been complied with such as to trigger the Commission’s powers to
deal with the dispute under the Agreement. This decision was appealed by the appellants in
2015.
[11] Related proceedings came before Commissioner Williams. On 30 September 2014, the
Commissioner published a Decision arising from applications by the respondent for security
for payment of costs in respect to each appellant’s unfair dismissal application; See: Jason
Deeney; Richard Park; Christopher Hughes; Denis Seiffert; and Christopher Strauss v
Patrick Projects Pty Ltd [2014] FWC 6700. After setting out the history of the matters and the
submissions of the parties (including the appellants’ submission that they were not bound by
the Consent Order referred to in para [9] above). Williams C concluded as follows:
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‘[91] In terms of the Redundant Applicants’ applications as I have indicated the
prospects of them succeeding in their substantive applications are very poor. In all
likelihood their applications will be dismissed. Patricks will inevitably incur further
costs to defend these applications and if indeed these applications are dismissed there
are sound arguments for the Commission to order the Redundant Applicants pay costs
to Patricks.
[92] There is no evidence however that the Redundant Applicants will not be able to
pay Patricks whatever amount of costs the Commission might order.
[93] Whilst this matter is finely balanced and given the historical background to the
redundancies and in particular the existence of the Consent Order Patricks are
understandably aggrieved to have to be defending these applications I am not satisfied
that this is a case in which the Commission should order the Redundant Applicants
pay a security for the payment of costs. Patricks’ applications for security for the
payment of costs against the Redundant Applicants will be dismissed.’
[12] On 20 April 2015, in preparation for the hearing of the appellants’ unfair dismissal
applications, Williams C granted permission to the respondent to be represented by a lawyer
in respect to Mr King’s unfair dismissal application. Mr King appealed this decision and the
Full Bench (Catanzariti VP, Drake SDP and Riordan C) on 4 May 2015 granted permission
to appeal, upheld the appeal and remitted the applications to Drake SDP for hearing; See:
King v Patrick Projects Pty Ltd [2015] FWCFB 2679 (‘King v Patrick Projects’). We note the
submissions of the appellants in the present appeal as to the significance of this decision.
[13] On 17 August 2015, the Full Bench consisting of the same members above, heard 23
appeals against three decisions in 2012 and 2013 of Cloghan C the consent order of Cloghan
C and one set of directions issued by Williams C:
‘ decision in [2012] FWAA 3678 of Commissioner Cloghan at Perth on 27 April 2012
in matter number AG2012/4959;
consent order PR539220 issued on 22 July 2013 and decision [2013] FWC 5636 of
Commissioner Cloghan at Perth on 14 August 2013 in matter number C2013/1088;
decision [2014] FWC 7019 of Commissioner Cloghan at Perth on 14 October 2014
in matter numbers C2014/4203, C2014/4204, C2014/4205, C2014/4206,
C2014/4207 and C2014/4208; and
directions of Commissioner Williams by email on 18 March 2015 in matter number
U2014/5970’
[14] In these appeals, the Full Bench dealt with permission to appeal only. The appeal
against the directions of Williams C was dismissed. All of the appeals against the 2012
Decision, the 2013 consent order and 2013 and 2014 decisions of Cloghan C were dismissed,
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primarily because they had been filed so significantly out of time that the apparent reasons for
the delay were insufficient to overcome the delays; See: King and Ors v Patrick Projects Pty
Ltd [2015] FWCFB 6323 (‘King and Ors v Patrick Projects’)
SUBMISSIONS
For the appellants
[15] The appellants provided a 63 page submission with their Appeal Book, which they
summarised as follows:
‘347. Grounds
348. On 27 April 2012 Asciano Limited agreed, signed, witnessed and executed two
(2) workplace instruments containing workplace rights including benefits that the
Appellants are entitled to.
349. The Respondent did not meet the obligations and did not abide by the provisions
in the workplace instruments before terminating the Appellants.
350. The actions and omissions of the Respondent led to proceedings before the
Commission.
351. The Respondent previously sought permission to be represented by a lawyer and
the Commission granted permission.
352. That previous decision did not consider any criteria in section 596 (2) and no
reasons for decision were provided.
353. That decision was appealed and the Full Bench: upheld the appeal in full, denied
permission for the Respondent to be represented by a lawyer and made orders that did
not provide for the Commission to reconsider permission for the Respondent to be
represented by a lawyer.
354. The Respondent was unable to meet any of the criteria in section 596 (2), as was
decided and later re-confirmed by the Full Bench.
355. On 11 and 13 August 2015, the Respondent pleaded with the Commission to
represent itself through the vast resources of it's parent ultimate holding company
Asciano Limited.
356. The Full Bench accepted that position of the Respondent and granted permission
for the Respondent to be represented as an employee of Asciano Limited.
357. However, the Commission sought new submissions on representation.
358. On 26 April 2016, the Respondent changed it's position, only in an argument of
convenience and intentionally misled the Commission.
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359. The Respondent has three (3) Industrial Relations Managers, eleven (11) in house
counsel (lawyers) and other lower level specialist human resources and industrial
relations staff.
360. It is not for the Appellants to forge the argument against representation.
361. It is for the Respondent to overcome it's previously demonstrated inability to
meet any of the criteria for permission to be represented.
362. In any event, the Commission again granted permission for the Respondent to be
represented by a lawyer.
363. That subsequent decision, which is the same as the previous decision in the same
circumstance, is again being appealed by the Respondents.
364. The law requires that in order for the Commission to grant permission for a party
to be represented by a lawyer, the Commission must be able to identify a meeting of or
exceeding of the criteria in section 596 (2).
365. Again, the subsequent decision did not consider criteria in section 596 (2), or any
part of section 596 or 381 or 783.
366. Again, no reasons for decision were provided.
367. The normal position of the Commission is parties are self represented.
368. The Appellants remain self represented.
369. The orders in the decision [2015] FWCFB 2679 at paragraph [21] (4) infer that
the matters are referred to a single member without further ability for the Respondent
to seek representation by a lawyer.
370. This diversity of decisions of the Commission against the Full Bench review of
the same decisions is a grave matter.
371. On 09 May 2016, the Respondent intentionally misled the Federal Court in
relation to proceedings before the Commission.
372. The Respondent's submissions and affidavits have been proven to be unreliable
whether before the Federal Court or before the Commission.
373. The Appellants submit the Respondents have put themselves into a position
where the Respondent cannot be relied upon orally or in writing.
374. Public Interest
375. Public interest has been addressed in the Form F7 Notice of Appeal and has been
reiterated in this Appeal Book.
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376. The concerns attracting the public interest include the following.
(a) The Commission previously made the same decision in the same matter,
with the same Applicant, where the same Respondent sought permission to be
represented by a lawyer,
(b) The Commission provided no reasons for that previous decision,
(c) The Full Bench reviewed that previous decision and denied permission for
the same Respondent to be represented by a lawyer,
(d) The Full Bench ordered the matter progress to a single member without
specifying any allowance for the Commission to reconsider permission for the
Respondent to be represented by a lawyer,
(e) The Full Bench in a subsequent hearing, in relation to the much more
complex matter of twenty three (23) appeals of four (4) previous decisions,
utilised the precedent of the previous decision to again deny the same
Respondent to be represented by a lawyer,
(f) The Respondent in representing itself in that much more complex, matter,
utilised it's internal resources including General Manager, Human Resources
Industrial Relations and specialised human, resources and industrial relations
staff.
(g) The Respondent was successful in that much more complex matter despite
not being granted permission to be represented by a lawyer.
(h) The Respondent in a subsequent submission to the Commission admitted to
having three (3) Industrial relations Managers and eleven (11) in house counsel
(lawyers).
(i) The Commission subsequently repeated the same decision in the same
matter, with the same Applicant, where the same Respondent was again
granted permission to be represented by a lawyer,
(j) the Commission again provided no reasons for the same decision,
(k) The Commission has been alerted on several occasions and has been
provided formal submissions in relation to fraud involving submissions to the
Commission by the same Respondent when represented by the same lawyer.
(l) The Commission had not followed the law in any manner and had not given
any consideration to section 381, 596 or 793.
(m) The decision attracts public interest especially in being plainly unjust.
CONCLUSION
377. It is unlawful and non nonsensical [sic] to for a company with three (3) industrial
relations managers, a team of specialist staff and eleven (11) in house lawyers to be
granted permission to be represented by a lawyer.
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COSTS
378. The Appellants seek orders that each party bear their own costs in accordance
with section 611, except that the Respondent pay all the costs of the Appellants due to
unreasonable act(s) under section 400A, so far as to include the following.
(a) Respondent providing false affidavit 18 July 2014.
(b) Respondent providing false submissions 20 August 2015.
(c) Respondent providing false statement 31 March 2015.
(d) Respondent not complying with orders 17 November 2015.
(e) Respondent providing false submissions 26 April 2016.
(f) Respondent providing false submissions 10 June 2016 (to the Federal Court
in relation to Fair Work Commission proceedings)’
[16] The appellants also provided a four page submission in response to Directions issued
on 14 June 2016.
[17] In further oral argument, Mr Strauss, for the appellants, submitted that all of the tests
identified in GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266
(‘GlaxoSmithKline’) as to permission to appeal being granted, had been met in this case. He
emphasised that as the Decision of Drake SDP on 18 May 2016 contained no reasons, the
decision was void because it did not inform the parties as to why the decision had been made.
In any event, Mr Strauss said that Her Honour’s belated decision of 27 June 2016 failed to
take material considerations into account.
[18] Mr Strauss further submitted that as there were ten separate occasions where the Full
Bench (of which Her Honour was a member) had refused permission for the respondent to be
represented by a lawyer, it was ‘incomprehensible’ that Her Honour did not follow those
decisions. Mr Strauss added that simply because Her Honour had listed the six unfair
dismissal applications together, did not make them more complex. Indeed, listing them
together was for reasons of efficiency; although four days of hearing would be insufficient to
deal with the matter and ten days was more likely.
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[19] Mr Strauss rejected Her Honour’s conclusion that the ‘facts are different’ in each case.
All six appellants were subject to the same redundancy process over a period of seven
months, although he acknowledged that two of the appellants had conduct issues involved. He
said that Her Honour should have explained why the ‘facts are different’ in each case and the
Decision of 18 May 2016 was ‘lazily attended at best’.
[20] Mr Strauss raised the appellants’ most recent application in a Form F48 in which it
alleged that the respondent had provided false or misleading evidence to the Commission
following orders made for the production of documents that were dealt with by Drake SDP on
12 April 2016. There was never any mention by Her Honour of issues of complexity with this
material. Mr Strauss believed that the real issues between the parties cannot be considered or
progressed, if a substantial amount of the respondent’s evidence is false, incomplete or
misleading. Mr Strauss claimed that there was strong evidence to demonstrate that the
respondent’s legal practitioners are not following their professional obligations to the
Commission and the Courts.
[21] Mr Strauss further submitted that the appellants could not say if Her Honour acted on
a wrong principle, had been guided by irrelevant factors or had mistaken the facts, because the
decision does not say so. Accordingly, there is sufficient doubt about Her Honour’s decision
to warrant its reconsideration.
[22] Lastly, Mr Strauss put that it was an injustice for the appellants to continually go
through a process of arguing against the respondent seeking permission to be represented by a
lawyer, when the appellants had succeeded on ten earlier occasions in resisting such
applications.
For the respondent
[23] Ms Ferrier submitted that as Her Honour’s decision was an interlocutory one, the Full
Bench should consider it in that light. She said that permission to appeal does not arise as a
right. The appellants had not provided any compelling public interest reason why permission
to appeal should be granted. There was no appellable error disclosed in Her Honour’s
decision.
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[24] Ms Ferrier conceded that while Her Honour’s decision was brief, it plainly
demonstrated the two step process required to be undertaken under s 596 of the Act. Her
Honour determined that having regard to the complexity of the matter, permission for the
respondent to be represented by a lawyer, should be granted. It is not enough for the
appellants to simply disagree with that finding. There is no doubt the facts in the substantive
proceedings will be significantly contested, as has already been demonstrated by the
appellants. Having met the jurisdictional test, her Honour exercised a discretion which was
clearly open to her.
[25] Ms Ferrier submitted that the public interest is not enlivened, as Her Honour’s
decision does not give rise to any issue of general principle, nor is it disharmonious with
previous decisions of the Commission. Each of the earlier decisions required an evaluation by
the individual member/s dealing with the matter. Ms Ferrier added that Her Honour’s
decision did not manifest an injustice, it was not counterintuitive and was within a range of
options available to her.
[26] Ms Ferrier responded to Mr Strauss’ submission highlighting ten examples of where
the respondent’s application for permission to be represented by a lawyer was refused. She
said this was not a proper characterisation of the decisions that had been made in the past.
There had been no ‘blanket disallowance’ of the respondent being represented by a lawyer. In
the main decision relied upon by the appellants (King and Others v Patrick Projects), there
were no disputed facts, no evidence led, 23 appeals were heard in half a day and most of the
appeals were so long out of time, that they could be dealt with in a relatively simple way.
These circumstances were very different to the substantive proceedings, where significant
factual material is disputed and the appellants seek to summons current and former employees
of the respondent in a ten day case.
[27] In reply, Ms Strauss described Ms Ferrier’s submissions as ‘embarrassing’. He said
that representation by a lawyer is also not a right. He was also bewildered by her submission
that there were no appellable errors in Her Honour’s decision. As no reasons were provided in
the email of 18 May 2016, that must be an error.
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[28] Mr Strauss submitted that Her Honour could not have known about the contested
evidence, as the evidence had not been filed until 30 June 2016. This was after her Decision
of 27 June 2016 and well after the decision, without reasons, of 18 May 2016.
[29] As to general principles, Mr Strauss put that any Commission decision which does not
provide reasons should be automatically void, if it is contested. The Full Bench should give
this guidance to other members of the Commission.
[30] Mr Strauss added that there was no doubt that another opportunity will arise for the
respondent to reapply to be represented by a lawyer and the appellants will have to argue the
issue again – which they are prepared to do.
CONSIDERATION
[31] We have considered all of the submissions of the parties, the additional materials
included in the Appeal Book and the relevant authorities in determining whether permission
to appeal should be granted in this case. For the following reasons we have declined to do so.
Statutory provisions
[32] This is an appeal brought under s 604 of the Act. That section reads:
604 Appeal of decisions
(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 by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
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.
[33] An appeal under s 604 of the FW Act is an appeal by way of rehearing. The
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker; See: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR
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194 at para [17], per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an
appeal may only be made with the permission of the Commission. Subsection 604(2) requires
the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do
so’. Permission to appeal may otherwise be granted on discretionary grounds.
[34] Section 400(1) modifies s 604(2) in relation to decisions made under Part 3-2, Unfair
Dismissal, of the FW Act:
(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.
[35] The effect of s 400(1) is that if the Full Bench does not consider that it is in the public
interest to grant permission to appeal, it must refuse such permission. It is not available to
grant permission on discretionary grounds.
[36] The Decision of the Senior Deputy President was made under s 596 of the Act. Section
596 provides as follows:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be
represented in a matter before the FWC (including by making an application or
submission to the FWC on behalf of the person) by a lawyer or paid agent only with
the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer
or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with
modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a
lawyer or paid agent if the lawyer or paid agent:
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(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the
Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[37] It is immediately apparent that s 596 is not located in Part 3-2 of the Act. Obviously, s
596 has direct application and is an important matter in relation to an unfair dismissal
application made under Part 3-2 of the Act. To the extent that this dichotomy raises any issues
about the nature of this appeal, we refer to the decision of the Full Bench in Asciano Services
Pty Ltd v Hadfield [2015] FWCFB 2618 (‘Asciano v Hadfield’). This was an appeal from a
decision to refuse permission for legal representation under s 596 of the Act. The Full Bench
determined that it would approach the matter on the basis that s 400(1) applied, but that it
would also state the conclusion it would reach if s 400(1) did not apply. In taking this
approach, the Full Bench relied upon the decision of the Federal Court (Besanko J) in
Australian Postal Corporation v Gorman [2011] FCA 975. In that matter, judicial review was
sought of an appeal decision of a Full Bench of the Commission which quashed the decision
of a single member to dismiss an unfair dismissal remedy application, under s 587 (which
provision is also not located in Part 3-2 of the FW Act). In that context, the question arose as
to whether the Full Bench was required to apply s 400(1) to the appeal. Besanko J said:
“[37] ... It seems to me that the Senior Deputy President’s decision was a decision
made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter
arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-
1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first
respondent’s application made under s 394 for a remedy for unfair dismissal. That is a
decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or
compensation would be a decision under that Part. Even if FWA’s general power to
dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a
decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to
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the order but to the ground upon which the order was made, that is, that the continued
pursuit of the application is frivolous or vexatious.”
[38] Consistent with this and other Full Bench authority, we have likewise taken the
approach that s 400(1) applies to this appeal. However, we will also take the step of setting
out the conclusion we would reach if s 400(1) did not apply.
[39] In Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at
para [45], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test
under s 400(1) as “a stringent one”. The task of assessing whether the public interest test is
met is a discretionary one involving a broad value judgment; See: O’Sullivan v Farrer (1989)
168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 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) 192 FCR 78 at paras [44] -[46].
In GlaxoSmithKline, a Full Bench of the Commission identified at para [27] some of the
considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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.”
[40] 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. 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; See: Wan v Australian
Industrial Relations Commission [2001] FCA 1803 at para [30].
[41] The granting of permission to be represented by a lawyer under s 596 involves a two-
step process; See: Warrell v Walton [2013] FCA 291 (‘Warrell v Walton’) at para [24].
Firstly, there must be satisfaction that at least one of the criteria in s 596(2) is satisfied. The
consideration required by this first step “involves the making of an evaluative judgment akin
to the exercise of a discretion”; See: Asciano v Hadfield at para [19]. Secondly, the discretion
conferred by s 596(2) must be exercised in favour of the applicant for permission.
[2016] FWCFB 5069
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Accordingly, in respect of either step, it will not be sufficient for an appellant to invite the
Full Bench simply to substitute its own determination for that of the single member whose
decision is the subject of the appeal. It is necessary to demonstrate error of the type identified
in House v The King (1936) 55 CLR 499.
The decision under appeal
[42] The appellants did not dispute that Her Honour’s Decision was an interlocutory
decision. We agree that this is a correct characterisation of the Decision. In Hutton v Sykes
Australia Pty Ltd [2014] FWCFB 3384 (‘Hutton’), the Full Bench observed as follows:
‘[3] The fact that this appeal challenges an interlocutory or procedural decision is
relevant to the determination of permission to appeal. Courts and tribunals have
generally discouraged appeals from preliminary or procedural rulings. Permitting
appeals against interlocutory or procedural rulings may prolong the proceedings
overall and increase the costs to the parties. There are other reasons why appellate
intervention at an early stage may be undesirable. Procedural rulings may be altered
later in the case and the party complaining about a procedural decision might
ultimately be successful in the substantive proceedings. In such a case any earlier
appeal in relation to a preliminary or procedural issue would be rendered futile
[endnote omitted].’
In Finance Sector Union of Australia v Comsec Trading Limited and others [PR945431], a
Full Bench of the Australian Industrial Relations Commission (AIRC) said at para [11]:
‘[11] The first reason is that it is in the public interest to discourage appeals from
preliminary or procedural rulings. This is an approach generally adopted by the courts
and by the Commission. It is only necessary to refer to the well-known passage from
the judgment of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):
"...I am of the opinion that,...there is a material difference between an exercise
of discretion on a point of practice or procedure and an exercise of discretion
which determines substantive rights. In the former class of case, if a tight rein
were not kept upon interference with the orders of Judges of first instance, the
result would be disastrous to the proper administration of justice. The disposal
of cases could be delayed interminably, and costs heaped up indefinitely, if a
litigant with a long purse or a litigious disposition could, at will, in effect
transfer all exercises of discretion in interlocutory applications from a Judge
in Chambers to a Court of Appeal."’
See also: Asciano v Hadfield at para [16].
[2016] FWCFB 5069
17
[43] Courts and tribunals (including this Commission, and its predecessors) have generally
discouraged appeals against interlocutory decisions. As the extracted passages from the
decision above demonstrate, it will not commonly be the case that permission to appeal would
be granted against an interlocutory decision and, in or view, this is so whether or not s.400(1)
of the Act applies to the decision the subject of the appeal under s.604 of the Act. We
consider that it is sufficient to rely on and apply the principles referred to above as a sound
basis for refusing permission to appeal in this matter. However, we would make the following
additional observations as to whether the appeal attracts the public interest.
[44] We are not persuaded that the substance of this appeal raises issues of wider
importance and/or general application, which extend beyond the direct interests of the parties.
The principles to be applied in applications under s 596 of the Act are now well settled. There
have been a number of Court and Full Bench decisions which have dealt with s 596 of the
Act, including Warrell v Walton, King v Patrick Projects, Asciano v Hadfield and New South
Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the
Australian Taxation Office [2014] FWCFB 1663 (‘McAuliffe’). Further guidance on the
subject would be of little utility and of no practical assistance.
[45] We are not satisfied that an arguable case of error has been made out. Given Her
Honour’s participation in the Full Bench which dealt with 23 appeals by the appellants
concerning various interlocutory matters relating to the substantive proceedings, it may be
reasonably inferred that Her Honour’s reference to the complexity of the six applications is
grounded on Her Honour’s knowledge of the long history of the applications. There is no
doubt as to Her Honour’s decision such as to warrant its reconsideration by this Full Bench.
[46] While we acknowledge that the Decision was brief, we are not persuaded that an
arguable case has been made out that Her Honour did not properly undertake the two stage
process required under s 596 of the Act. It appears to us on the face of the decision and
additional reasons that Her Honour correctly stated and relied on one of the three criteria
found in s 596(2). Her Honour was satisfied that the requirements of sub-section (2)(a) of s
596 had been made out. Given this finding, it was unnecessary for Her Honour to deal with
the other considerations under ss 596(2)(b) and (c). She then exercised her discretion to grant
permission to the respondent to be represented by a lawyer and gave sufficient reasons for her
decision to do so. We find nothing remarkable or unconventional about this approach.
[2016] FWCFB 5069
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[47] In our view, the appellants have not established an arguable case that Her Honour’s
decision manifests an injustice. The fact that the respondent will have legal representation and
the appellants will not, is not a sufficient basis to demonstrate an arguable case of ‘manifest
injustice’. Such representation is a common feature of proceedings in the Commission, most
notably in unfair dismissal cases. Based on our observations during the permission to appeal
hearing and our review of the appeal materials prepared by the appellants, it appears to us that
the appellants will be well able to articulate their arguments and prosecute their unfair
dismissal applications. From the history set out in the Appeal Book, it is obvious that the
appellants are very familiar with the provisions of the Act, the Commission’s Rules and
procedures, the relevant authorities of the Commission. They seem well capable of navigating
the provisions of the Act and of making various applications to this Commission and the
Courts in order to serve or defend their interests.
[48] As was said in Hutton, interlocutory decisions can be altered at any time. Members of
the Commission have ultimate responsibility for the control and conduct of proceedings
before them. In our opinion, there does not appear to be any impediment under s 596 of the
Act, to the Commission revisiting an earlier decision to grant permission to be represented by
a lawyer, if the circumstances are such as to warrant such reconsideration.
[49] We do not consider that the history of various interlocutory proceedings in which
permission to be represented by a lawyer was not granted, is determinative of later substantive
proceedings involving the same parties. In any event, the appellants’ submissions that Her
Honour’s Decision was contrary to previous Full Bench authority of which she was a
member, is incorrect as the decision in King v Patrick Projects at para [4]) makes plain. In
any event, it is apparent that the appellants’ contention that Her Honour’s Decision was
contrary to ten other Full Bench findings, is a mischaracterisation of that history. There have
not been ten discrete decisions refusing permission to appear, only two; See: King v Patrick
Projects and King and Ors v Patrick Projects. To describe words used by the Full Bench in
transcript or in the body of a decision, as constituting ten examples of permission being
refused, is an inaccurate characterisation.
[50] Moreover, the appellants’ reliance on King v Patrick Projects as being binding on Her
Honour ignores the different set of issues which were before the Full Bench and the issues
[2016] FWCFB 5069
19
Her Honour is to decide in the substantive proceedings. In King v Patrick Projects, there were
no disputed facts, no evidence was led and most of the appeals were dismissed in a
straightforward way on the unremarkable conclusion that they were so egregiously out of
time, that no public interest issues arose. This is to be contrasted with that which will be
before Her Honour in the substantive proceedings, where the factual material will be
vigorously contested, summonses to give evidence have been foreshadowed to current and
former employees of the respondent and on Mr Strauss’ own submission, the proceedings are
likely to run for many days. Complexity arising from contested evidence or witness credit has
been held by the Commission to be grounds for granting permission to be represented by a
lawyer; See: Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul [2014 FWC 2790.
[51] For the aforementioned reasons, we are not satisfied that the public interest has been
enlivened to warrant the grant of permission to appeal in this matter. If s.400(1) does not
apply to this appeal, we would still refuse permission to appeal for the reasons we have stated
as no public interest or discretionary grounds have been made out which would justify the
grant of permission to appeal against an interlocutory decision.
[2016] FWCFB 5069
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[52] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr C Strauss for the appellants.
Ms E Ferrier for the respondent.
Hearing details:
2016.
Sydney/Perth:
12 July.
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