1
Fair Work Act 2009
s.604—Appeal of decision
Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2018/2983)
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON
COMMISSIONER CIRKOVIC MELBOURNE, 8 AUGUST 2018
Appeal against decision [2018] FWC 2689 of Deputy President Kovacic at Canberra on
14 May 2018 in matter number U2017/11691 – application for orders requiring production
of documents – permission to appeal refused.
[1] Mr Ross Kennedy has applied for permission to appeal and has appealed a decision1
made by Deputy President Kovacic on 14 May 2018 (the Decision), in which the Deputy
President declined to make orders sought by Mr Kennedy that Qantas Ground Services Pty
Ltd (QGS) and several other persons and entities produce copies of certain documents and
records.
[2] Mr Kennedy was dismissed from his employment with QGS on 2 November 2017,
after QGS determined that he had no capacity, and would not have capacity in the foreseeable
future, to safely perform the inherent requirements of any role with the company. QGS based
its decision on a medical report prepared by a Dr Walker.
[3] On 3 November 2017, Mr Kennedy filed an unfair dismissal application under s.394
of the Fair Work Act 2009 (Act). On 19 December 2017, Mr Kennedy made an application
seeking orders for the production of documents in connection with his unfair dismissal
application. The orders sought were directed at QGS and Dr Walker; Recovery Partners,
which is a company previously engaged by QGS to prepare a return to work plan for Mr
Kennedy; MJSP Management Consulting, a company engaged by QGS to investigate
allegations made by Mr Kennedy that he had been bullied in the workplace; and Allianz
Insurance Australia, the insurer responsible for dealing with a workers’ compensation claim
filed by Mr Kennedy.
1 [2018] FWC 2689.
[2018] FWCFB 4552
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 4552
2
[4] Mr Kennedy’s applications for orders to produce were the subject of a mention and
directions hearing on 6 April 2018, and then a conference before Deputy President Kovacic
on 30 April 2018. Those participating in the conference included Mr Kennedy, Mr Michael
O’Neil, who is Qantas’ head of industrial relations for associated airlines and services, Dr
Walker, representatives of Recovery Partners and MJSP, and a barrister instructed to act on
behalf of MJSP. During the conference, the Deputy President led a discussion in relation to
the orders for production sought by Mr Kennedy, and the objections raised by the respondent
and other persons. A large number of documents were sought. The attachment to Mr
Kennedy’s F52 application listed 28 ‘requests’ concerning various categories and
subcategories of documents. The documents sought to be produced from QGS totalled 107.
[5] In his decision of 14 May 2018, the Deputy President determined to issue orders for
the production of some but not other documents sought by Mr Kennedy in respect of QGS,
Dr Walker and Recovery Partners.2 No orders for production were issued in respect of MJSP.
The application in respect of Allianz was not pressed. Mr Kennedy lodged his notice of
appeal on 1 June 2018.
Permission to appeal
[6] 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.3 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. The task of assessing
whether the public interest test is met is a discretionary one involving a broad value
judgment.4 The public interest is not satisfied simply by the identification of error, or a
preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench
of Fair Work Australia identified some of the considerations that may enliven 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...”6
[7] The grounds for granting permission to appeal under s.604(1), absent the application
of the public interest, are not specified. However, considerations that have traditionally been
treated as justifying the grant of permission to appeal include that the decision is attended
2 See PR607057, PR607055 and PR607056 respectively.
3 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17].
4 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28]; Coal & Allied Mining
Services Pty Ltd v Lawler [2011] FCAFC 54.
6 [2010] FWAFB 5343 at [27], (2010) 197 IR 266.
[2018] FWCFB 4552
3
with sufficient doubt to warrant its reconsideration and that substantial injustice may result if
permission is refused.7
[8] 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.8 However, the fact that a member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.9
[9] Section 400(1) modifies s.604(2) of the Act in relation to appeals from decisions made
under Part 3-2, which concern unfair dismissal applications. It provides that, despite
subsection 604(2), the Commission must not grant permission to appeal from such decisions
unless it considers that it is in the public interest to do so. If s.400(1) applies, the public
interest is the sole criterion for the grant or refusal of permission to appeal. If the appeal
bench does not consider that it is in the public interest to grant permission to appeal, it must
refuse such permission. In Coal & Allied Mining Services Pty Ltd v Lawler, the Federal Court
characterised the test under s.400 as ‘stringent’.10
[10] The Deputy President’s decision was made under s.590, which allows the
Commission to inform itself in relation to any matter before it in such manner as it considers
appropriate, including by requiring a person to provide copies of documents or records.11
Section 590 is in Part 5-1 of the Act and on this basis it might be contended that s.400 does
not apply to decisions made under that provision. However, the Decision was made in
relation to an application brought under Part 3-2 of the Act, namely Mr Kennedy’s unfair
dismissal application. In Australian Postal Corporation v Gorman,12 Besanko J concluded
that an appeal from a decision to dismiss an unfair dismissal proceeding under s.587 of the
Act was a decision to which s.400 applied. Section 587, like s.590, is found in Part 5-1 of the
Act. Further, in Asciano Services Pty Ltd v Hadfield,13 a Full Bench of the Commission
decided that s.400 applied to an appeal from a decision not to grant permission for
representation under s.596 of the Act in respect of an unfair dismissal application.
[11] The apparent purpose of s.400 is to confine the circumstances in which unfair
dismissal applications can be appealed so as to promote the finality of litigation with respect
to such claims. It would be contrary to this purpose if the limitation applied to substantive
decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning
those same matters. In our view, the present appeal is one from a decision made under Part 3-
2 of the Act. The Decision dealt with applications for the production of documents in an
unfair dismissal proceeding brought before the Commission under that part of the Act.
Accordingly, we consider that s.400(1) of the Act applies to the matter before us.
7 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28];
Coal & Allied Mining Services Pty Ltd v Lawler; (2011) 192 FCR 78.
10 (2011) 192 FCR 78 at [43].
11 Section 590(2)(c).
12 (2011) 196 FCR 126 at [37].
13 [2015] FWCFB 2618.
[2018] FWCFB 4552
4
The appeal
[12] Mr Kennedy’s grounds of appeal contend that the Deputy President’s decision not to
make the relevant orders for production was affected by various errors, and that Mr Kennedy
was denied procedural fairness in connection with the conference on 30 April 2018 at which
the proposed orders were discussed.
[13] QGS contended that the proper focus of the appeal was the Decision, not what
occurred at the conference on 30 April 2018. However, the Decision is the result, at least in
part, of the discussion that ensued during these proceedings. In our view there is no basis to
exclude from our consideration of the appeal what occurred, or did not occur, at the
conference.
[14] The orders sought by Mr Kennedy and refused by the Deputy President are addressed
in the Decision. We will first make some brief observations about them, and refer to relevant
passages from the Decision.
QGS documents
[15] Mr Kennedy sought orders that would require QGS to produce documents relating to
various bullying complaints made by Mr Kennedy to QGS supervisors during his
employment. As to these proposed orders, the Deputy President said the following:
“[16] Mr Kennedy sought an Order requiring QGS to produce 107 documents in total,
the bulk of which appear to relate issues associated with his bullying claims.
[17] At the conference, Mr Kennedy advised that in the light of discussions at the
conference that he no longer pressed his application in respect of all but a few of the
documents he sought from QGS. Specifically:
Mr Kennedy indicated that he did not press proposed Orders 1-81, 84, 86, 90-93,
95-102 and 104-107;
Mr Kennedy pressed proposed Orders 82, 83, 85, 87-89 and 103; and
QGS undertook to voluntarily provide Mr Kennedy with copy of his personnel file
(proposed Order 94 sought by Mr Kennedy) – accordingly I consider an Order in
respect of that document to be unnecessary.
[18] With regard to those documents where Mr Kennedy pressed his application, I
have decided to make orders in respect of proposed Orders 82 and 83 on the basis that
they are relevant to the proceedings. However I have decided not to make orders in
respect of proposed:
Order 85 and 87 on the basis that the documents sought are covered by the material
to be produced by QGS in accordance with what was proposed Order 1 in respect
of Dr Walker;
Order 89 on the basis that the documents sought are not relevant and having regard
to the Mr Hardy’s letter to Mr Kennedy of 27 September 2017 in which he
confirmed that QGS did not obtain a supplementary report from Dr Walker; and
Order 103 on the basis that the documents sought are not relevant.”
[2018] FWCFB 4552
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MJSP documents
[16] Mr Kennedy sought orders that MJSP Management Consulting produce documents
concerning an investigation it conducted of his bullying complaints. In this regard, the
Deputy President concluded as follows:
“[9] Mr Kennedy sought an Order requiring MJSP to produce eight documents, all of
which related to MJSP’s investigation of Mr Kennedy’s bullying claims. MJSP
submitted that, as the investigation report was not cited in Mr Kennedy’s unfair
dismissal application as a reason why his dismissal was unfair nor mentioned in the
letters of 27 September and 2 November 2017 from Mr Hardy to Mr Kennedy, the
documents were wholly irrelevant to his unfair dismissal application. Mr Kennedy
maintained that the documents were relevant given that Dr Walker’s report included
the following when referring to his application for an order to stop bullying – “An
independent investigation did not substantiate his allegations.”
[10] On 1 May 2018 Mr O’Neil advised the Commission that QGS did not press a
claim for legal professional privilege in respect of the document covered by Mr
Kennedy’s proposed Order 1 in respect of MJSP.
[11] Having considered the parties’ various submissions I am not prepared to make
any of orders sought by Mr Kennedy in respect of MJSP as I am not satisfied as to the
relevance of the documents sought by Mr Kennedy.”
Recovery Partners documents
[17] Mr Kennedy sought orders to require the production of various documents by
Recovery Partners. In respect of this application, the Deputy President said as follows:
“[13] Having considered the parties’ submissions, the proposed Orders 1, 4 and 7
sought by Mr Kennedy will be made on the basis that the documents are relevant.
Given Recovery Partners’ submissions that documents do not exist in respect of
proposed Orders 2 and 3, I do not propose to make Orders sought in respect of those
documents. As to the remaining documents sought in proposed Orders 6, 8 and 9, I do
not propose to order that the documents be produced as I am not satisfied as to the
relevance of the documents.
[14] With regard to proposed Order 5, on 8 May 2018 Mr Kennedy forwarded to the
Commission a Statutory Declaration made by Mr Christopher Mackonis, an employee
of QGS at Canberra International Airport, in which he among other things outlined
problems he encountered with Recovery Partners in respect of its work on a return to
work plan for him and gave permission for Mr Kennedy to access a copy of his return
to work plan held by Recovery Partners and a copy of his completed 2018 Staff
Satisfaction Engagement Survey held by QGS. While Mr Mackonis’ statutory
declaration addresses any privacy considerations in respect of Mr Kennedy’s
application for an Order requiring the production of his return to work plan, I am not
satisfied that the document is relevant. I would note that there is nothing to preclude
Mr Mackonis obtaining a copy of the documents and providing them to Mr Kennedy
should he wish to do so.”
[2018] FWCFB 4552
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Allianz documents
[18] Mr Kennedy sought orders for the production of documents concerning the
assessment of two applications made by him for workers’ compensation, through Allianz
Insurance. At paragraph 15 of the Decision, the Deputy President states that at the
conference, Mr Kennedy did not press the Orders sought in the light of the Commission’s
questions regarding relevance and the approach adopted by the Commission in respect of the
application relating to MJSP.
[19] Mr Kennedy’s appeal notice advanced seven grounds of appeal. Grounds 1 to 5 relate
principally to concerns Mr Kennedy raises in respect of the conference conducted on 30 April
2018, and in particular his contention that he was denied procedural fairness. Grounds 6 and
7 focus on the Deputy President’s reasons for his decision not to grant the relevant orders.
We will deal with these appeal grounds in turn.
The first and second grounds of appeal
[20] The first and second grounds of appeal contend that Mr Kennedy was disadvantaged
by the respondent’s use at the conference on 30 April 2018 of a 76 page document entitled
‘QGS Objections to Amended Orders to produce’ (QGS objections document). Mr Kennedy
submits that this document was filed after the commencement of the conference, and that he
did not have a reasonable opportunity to respond to the objections raised in the document. In
his written submissions, Mr Kennedy contended that this amounted to a denial of procedural
fairness. He further submitted that, because the Deputy President did not issue directions in
respect of his application for orders to produce, he was not provided with any submissions
from the company in respect of its objections.
[21] The Deputy President addresses Mr Kennedy’s concerns about being denied
procedural fairness during the conference on 30 April 2018 in his Decision:
“[19] In subsequent developments, on 3 May 2018 Mr Kennedy sent an email to the
Commission contending inter alia that he had been denied procedural fairness at the
conference in respect of any response he may have had regarding a document tabled
by QGS setting out its views regarding each of the documents sought by Mr Kennedy
(including the documents sought from parties other than QGS). While I note Mr
Kennedy’s contention I do not accept it in circumstances where it was Mr Kennedy
who went through the list of documents sought from QGS, as set out in the document
tabled by QGS at the conference, and indicated that he either pressed or did not press
his application in respect of each document. Where Mr Kennedy indicated that he
pressed his application he was given the opportunity to set out the reasons for seeking
the document and its relevance to his unfair dismissal application. QGS was similarly
given an opportunity to outline it views, with Mr Kennedy having the opportunity to
respond. In respect of the applications relating to the other parties, Mr Kennedy was
given the opportunity to make submissions in support of his application and respond
to the submissions of the other parties.”
[22] The Deputy President’s use of the QGS objections document during the conference in
the circumstances of the present matter reveals no error. The document tabled by QGS at the
conference was lengthy because it was responding to the vast array of documents sought by
Mr Kennedy. The preparation of a document setting out in writing what would otherwise
[2018] FWCFB 4552
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have had to be conveyed orally appears to us to be a pragmatic step conducive to the efficient
running of the proceeding. Moreover, it is evident from the passage above that Mr Kennedy
himself engaged with the document during the conference.
[23] Mr Kennedy plainly had an opportunity to be heard in relation to his application for
orders to produce, and to respond to QGS’s objections. The Deputy President convened a
conference to discuss the orders sought and the objections of the respondent. He could have
dealt with the matter on the papers, as often occurs in relation to such applications, or through
a telephone mention. Mr Kennedy was on notice that production of documents was resisted
on the basis of relevance and privilege.14 Further, Mr Kennedy does not explain how he was
actually prejudiced by what occurred, such as why the Deputy President might have reached
a different conclusion in respect of certain proposed orders if some other course had been
followed.
[24] Mr Kennedy contended in his written submissions that the Deputy President failed to
offer him an adjournment at the conference, at the point where he made his decision not to
issue certain orders.15 This was not a failing on the Deputy President’s part. If Mr Kennedy
wanted more time he could have asked for it, although there is no reason to apprehend that
any such request ought to have been granted.
[25] Mr Kennedy further contended that the Deputy President should have issued
directions in respect of his applications for orders to produce documents, and that he was not
provided with any submissions by the various parties as to their objections. However, there
was no need for directions to have been made in relation to the conference, or for
submissions to have been filed and served in advance, in relation to an interlocutory
proceeding of this kind.
[26] There is no basis to conclude that Mr Kennedy was denied procedural fairness in
relation to his application for orders to produce, or the discussion of his application at the
conference on 30 April 2018. The first and second grounds in the notice of appeal are without
substance and we reject them.
The third ground of appeal
[27] The third ground of appeal contends that the Deputy President ‘failed to apply
consistency at the conference on 30 April 2018’ in connection with his decision to refuse to
make orders to produce the Allianz documents, the MJSP documents and Mr Kennedy’s
bullying complaints to his QGS supervisors. Mr Kennedy submits that the Deputy President
conducted the proceedings in relation to his applications for orders to produce documents
differently from the way in which he conducted another interlocutory proceeding pertaining
to Mr Kennedy’s unfair dismissal matter, namely QGS’s application under s.596 for
permission to be represented by counsel. In respect of the latter, the Deputy President issued
directions, and also provided the parties with a preliminary decision. The Deputy President
ultimately refused QGS’s application for permission to be represented by counsel. Mr
Kennedy contended that the Deputy President should have adopted the same or a similar
approach in relation to his consideration of Mr Kennedy’s applications for orders to produce
documents.
14 For example, see the respondent’s email of 5 April 2018, to the Deputy President, copied to Mr Kennedy.
15 Appellant’s submissions at Ground 1, paragraph 69(vi).
[2018] FWCFB 4552
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[28] There is no basis for such a contention. Part 5-1 of the Act confers on the Commission
a broad discretion as to how it conducts proceedings. It must perform its functions and
exercise its powers in a manner that is fair, just and quick (s.577). It is invested with
significant latitude in relation to procedural and interim decisions (s.589), and can inform
itself in relation to a matter in any way it considers appropriate (s.590). It is not bound by the
rules of evidence or procedure (s.591). It can conduct matters in conference and require
parties’ attendance (s.592). There is no requirement for a member of the Commission to
apply a uniform approach to all interlocutory proceedings concerning the one substantive
matter. The approach to be taken to each of the two interlocutory applications was a matter
for the Deputy President to determine, in accordance with the Act. In each case, he
considered the parties’ positions and made a decision. He declined to grant QGS permission
to be represented by counsel. He made some of the orders sought by Mr Kennedy but not
others. Ground three in the notice of appeal reveals no error and is rejected.
The fourth and fifth grounds of appeal
[29] The fourth and fifth grounds of appeal submitted that the Deputy President erred by
having based his decision to refuse Mr Kennedy’s request for production of various
documents on his ‘expedited reading’ of Dr Walker’s report during an adjournment at the
conference on 30 April 2018. The documents in question were the Allianz Workers’
Compensation claims assessment, Mr Kennedy’s anti-bullying complaints made to QGS
supervisors, and documents concerning the MJSP investigation. In his written submissions,
Mr Kennedy states that after a brief adjournment, the Deputy President said that the reason
for his decision to refuse production of these documents was connected to a statement
attributed to Mr Kennedy in the report of Dr Walker, to the effect that Mr Kennedy was
inevitably going to be bullied and harassed at work.16 Mr Kennedy contends that he was not
given a reasonable opportunity to refute having made the statement, such as by referring to
another report from May 2017, which recorded Mr Kennedy saying that he did not recall
making the statement.
[30] In the Decision, the Deputy President concluded that the MJSP documents were not
relevant, and declined to order their production on this basis.17 He does not make reference to
the statement contained in the report of Dr Walker. But even if he did refer to this statement
in the conference on 30 April 2018 as a reason for his refusal to issue certain orders, the
absence of a corresponding reference to this in the Decision does not establish error. The
reasons the Deputy President cites for his decision not to order production of the documents
are adequate; he was not required to identify all of his reasons in his written decision. We
would also note that the Deputy President was not required to issue a written decision (see
s.601(1)(a)); he could have chosen to record his decision on transcript.
[31] In his written submissions, Mr Kennedy further submits that the Deputy President
should have provided him with a ‘preliminary decision’ on his refusal to order production of
the documents, and that he failed to offer him an adjournment at the conference at the point
when he made his decision. As to the first matter, the Commission is not required to issue
preliminary decisions. The fact that it might have done so in one context (here, in relation to
QGS’s unsuccessful s.596 application) does not suggest that it ought to do so in another. As
16 Appellant’s submissions at Ground 4, paragraph 68.
17 At [11].
[2018] FWCFB 4552
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to the second matter, if Mr Kennedy wanted further time to make additional submissions, he
could have requested it, although it appears to us that the arrangements made by the Deputy
President to allow Mr Kennedy to make his case for the issuing of the relevant orders were
more than adequate. We appreciate that Mr Kennedy is a self-represented party, however if
he had a concern, he should have brought it to the Deputy President’s attention.
[32] Mr Kennedy appears to criticise the Deputy President’s ‘expedited reading’ of Dr
Walker’s report during the conference, and the fact that he had not read the document before
the conference.18 There is no basis for criticism. To the extent that the Deputy President read
the medical report at the conference, referred to its content or made an observation or
comment about its content, it was unremarkable that he did so, particularly in light of the
discretion afforded to the Commission under s.592 concerning the conduct of conferences.
[33] Finally, we take note of the fact that Mr Kennedy disputes the truth of the statement
attributed to him in Dr Walker’s report. However, the Deputy President was deciding whether
to order the production of documents; the proper focus of his consideration was the apparent
relevance or otherwise of those documents to Mr Kennedy’s unfair dismissal proceedings,
not the veracity of their content. We appreciate that Mr Kennedy considers that certain
documents, particularly the MJSP documents, are relevant for the purpose of demonstrating
in his unfair dismissal proceedings that he was subjected to bullying. However the Deputy
President was not persuaded of their relevance, and we do not consider that he made any
error in this regard. The Deputy President also noted that it is open to Mr Kennedy to make
further application for orders to produce documents, including once materials have been
filed,19 when considerations of apparent relevance might be seen in a different light.
[34] Before concluding our consideration of Mr Kennedy’s arguments in respect of the
MJSP documents, it is necessary for us to address a brief but important contention in Mr
Kennedy’s written submissions, namely that MJSP did not seek permission to be represented
by counsel at the conference on 30 April 2018.20 From our review of the transcript of
proceedings of the morning session of the conference, it does not appear that MJSP sought
permission to be represented by a lawyer. MJSP was represented both by Mr Swartz, an
employee of the company, and Mr Healy, a barrister. They participated by telephone.
Although MJSP was not a party principal to the unfair dismissal proceeding, it was a person
seeking to be represented by a lawyer in a ‘matter before the Commission’ for the purposes of
s.596. It was a person against whom orders for production of documents had been sought and
who was taking part in a conference before the Commission. The decision of the Federal
Court in Warrell21 makes clear that non-compliance with s.596 is not a mere procedural
technicality, but a serious matter, as it may change the dynamics and manner in which a
hearing is conducted.22 The Deputy President ought to have required MJSP to seek
permission under s.596 to be represented by Mr Healy in the conference, and then determined
that application. His failure to do so was an error.
[35] However, as noted earlier, the presence of error alone is not sufficient to warrant the
grant of permission to appeal. This is especially so when s.400 applies, and the Full Bench is
18 Ground 4, notice of appeal; appellant’s submissions at Ground 1, paragraph 69(ii).
19 At [20].
20 Appellant’s submissions at Ground 3, paragraph 67(iv).
21 Warrell v Walton [2013] FCA 291, 233 IR 335.
22 Fitzgerald v Woolworths [2017] FWCFB 2797 at [31].
[2018] FWCFB 4552
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under statutory commandment not to grant permission to appeal unless it considers that it is
in the public interest to do so. In assessing whether it is in the public interest to grant
permission to appeal, we have considered all of the circumstances, including the following.
[36] First, our review of the transcript does not lead us to conclude that the effect of the
Deputy President’s error was such as to render the conference, as it related to the discussion
of the MJSP documents, unfair or unjust. The recorded conference concerned procedural
questions, namely an application for the production of documents. In respect of the MJSP
documents, there was discussion about the documents that Mr Kennedy sought to have
produced. The transcript shows this discussion to have proceeded in an informal and non-
non-adversarial manner. Mr Kennedy was not interrogated or cross-examined by Mr Healy.
The Deputy President concluded that he was not minded to issue the MJSP documents, and
Mr Kennedy indicated that he accepted this.23 Secondly, as the Deputy President indicated,
Mr Kennedy remains free to make a further application for production of the MJSP
documents if there is a basis to revisit their apparent relevance to the unfair dismissal
proceedings, such as might arise once submissions and evidence in the unfair dismissal
proceeding have been filed, or even at some point during the substantive proceeding. The
Deputy President’s decision not to issue an order in respect of the eight documents sought has
not finally determined the question of whether those or other documents will be produced,
nor has it finally determined any substantive claim that Mr Kennedy advances before the
Commission, circumstances that contrast sharply with those in Warrell. Thirdly, we do not
consider the Deputy President’s decision not to order production of the MJSP documents
manifests an injustice, nor do we consider that this decision is counter-intuitive. Fourthly, the
appeal does not give rise to an issue of general principle, or encounter a diversity of decisions
at first instance requiring resolution by a Full Bench. The correct approach to the application
of s.596 was addressed in Warrell and in various decisions of the Full Bench, including
Fitzgerald v Woolworths.24 Fifthly, courts and tribunals have generally discouraged appeals
against interlocutory or procedural rulings such as orders for production of documents, as
they may unduly and unfairly prolong the substantive proceedings, and such ruling may in
any event be altered later in the case.25
[37] Taking these matters into account, we do not consider that it is in the public interest to
grant permission to appeal against that part of the Decision constituted by the refusal to order
production of the MJSP documents. We must therefore refuse permission to appeal in relation
to that decision. Even applying the less stringent test for permission to appeal proposed by Mr
Kennedy (that is, s.604, unaffected by s.400) we are not persuaded that permission to appeal
would be warranted. The decision that the MJSP documents were not relevant and should not
be produced is not attended with doubt such as to warrant reconsideration, nor do we consider
that a substantial injustice would arise from a refusal of permission.
The sixth and seventh grounds of appeal
[38] The sixth and seventh grounds of appeal submit that there was a failure by the Deputy
President to provide reasons for his decision to refuse certain orders. Mr Kennedy contends
that the Deputy President failed to provide reasons for his decision to refuse Mr Kennedy’s
23 PN423 - PN425.
24 [2017] FWCFB 2797.
25 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited.
[2018] FWCFB 4552
11
request for documents in relation to the MJSP investigation.26 He also submits that the
Deputy President failed to provide reasons for his decision to refuse proposed Order 5.27
However, at paragraphs 11 and 14, the Deputy President plainly does give reasons for these
decisions.28 It is not necessary for us to repeat them. Mr Kennedy may disagree with the
Deputy President’s assessment of the relevance of the documents that he sought
unsuccessfully to be produced. But this is not a proper basis on which to appeal the Decision.
Error must be identified.
Other submissions
[39] QGS contended that Mr Kennedy’s written submissions went beyond the grounds
raised in the notice of appeal. No application was made for leave to amend the notice of
appeal, however in our view none was necessary. We consider the written submissions of Mr
Kennedy to be sufficiently related to the grounds set out in the notice of appeal to form part
of the appeal. We have read and had regard to the additional matters raised in the written
submissions, and will briefly address some of them.
[40] It was contended that the Deputy President erred by not taking into account the
decision of Commissioner Hampton in Application by Ms SB.29 However, there is no
explanation of why this amounted to error. Simply not citing or considering another first
instance decision does not amount to error.
[41] It was submitted that the Deputy President erred in citing Clermont Coal Operations
Pty Ltd v Troy Brown and Others30 because the applicant in that case was given an
opportunity to file written submissions. However, the point of the Deputy President’s
reference to the Full Bench decision is that in considering whether to order the production of
documents, the test is whether the documents sought have an apparent relevance to the issues
in the proceedings. The Commission will not order production of irrelevant documents, or
material of only marginal or tangential relevance, as this will not assist the Commission in
determining a matter before it. We do not see any basis for us to second guess the Deputy
President’s conclusion on relevance in the present circumstances.
[42] It was submitted that the Deputy President took into account ‘irrelevancies’ in his
decision of 14 May 2018. However, general assertions of this kind do not establish error.
[43] Finally, it was contended that the Deputy President erred by not confirming with QGS
that the 76 page document was not prepared by their lawyers, given that the Deputy President
had not granted permission for QGS to be represented by counsel. We reject this contention.
There would have been no proper basis for the Deputy President to intervene in this way. The
Deputy President’s decision not to grant permission for QGS to be represented by counsel
under s.596 did not affect the company’s right to have counsel prepare written submissions.
Section 596(1) states that, ‘except as provided by … the procedural rules’, a person may be
represented in a matter before the Commission by a lawyer or paid agent only with the
permission of the Commission. Rule 12(1) provides that, for subsection 596(1) of the Act, a
26 Mr Kennedy refers to the Decision at [11].
27 Mr Kennedy refers to the Decision at [14].
28 See also [6], [9]-[11].
29 Appellant’s submissions at Ground 2, paragraph 66.
30 [2015] FWCFB 2460.
[2018] FWCFB 4552
12
person may be represented in a matter before the Commission by a lawyer or paid agent for
various purposes, including ‘(a) preparing a written application or written submission for the
person in relation to the matter’.
[44] Although the Deputy President had decided not to grant permission for the respondent
to be represented by counsel under s.596(2), he had not made any order under Rule 12(2).31
Accordingly, there would have been nothing to prevent the respondent’s lawyers from
preparing a document for QGS to use at the conference on 30 April 2018.
[45] In this regard, we should point out that on 4 June 2018, shortly after the notice of
appeal was filed, Mr Kennedy wrote to the Deputy President seeking ‘advice’ from him as to
whether the company was able to use its lawyers to prepare written submissions. On 18 June
2018, the Deputy President replied to Mr Kennedy stating that, having regard to the Full
Bench decision in Fitzgerald v Woolworths Limited, the answer to Mr Kennedy’s question
was ‘no’. With respect, the correct answer to this question was ‘yes’. That Mr Kennedy
pursued certain arguments based on the answer he received is understandable, but they are
not relevant to the determination of his appeal.
[46] Finally, we note that, while s.596 places limitations on the right of a person to be
represented in a matter before the Commission, it does not affect a person’s right to seek
legal advice about such a matter. Moreover, if a person does seek such advice, confidential
communications between client and lawyer for the dominant purpose of the lawyer providing
legal advice will be privileged. Although the Commission is not bound by the rules of
evidence, it is well-established that legal professional privilege is not simply a rule of
evidence, but a substantive doctrine of the common law.32 There is no provision in the Act
that excludes the doctrine of privilege in relation to proceedings before the Commission.
Conclusion
[47] The Deputy President erred by not considering the question of whether permission
should be granted to MJSP under s.596 to be represented by a lawyer at the conference on 30
April 2018. However, for the reasons given above, we do not consider that it is in the public
interest to grant permission to appeal against the Deputy President’s decision not to order
production of the MJSP documents. No other error has been identified, and we do not
otherwise consider that it is in the public interest to grant permission to appeal.
[48] We therefore refuse permission to appeal, as s.400(1) requires.
DEPUTY PRESIDENT
31 Mr Kennedy made an application to the Full Bench for a direction under Rule 12(2) in relation to the appeal. The
application was dismissed: [2018] FWCFB 4319.
32 The Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
THE FAIR WO COMMISSION BALLA
[2018] FWCFB 4552
13
Appearances:
Mr Ross Kennedy on his own behalf.
Mr Michael O’Neil for Qantas Ground Services Pty Ltd.
Hearing details:
2018.
Melbourne, Canberra (video hearing).
25 July.
Printed by authority of the Commonwealth Government Printer
PR609659
