s.604 - Appeal of decisions

Appeal against decisions of Deputy President Boyce at Sydney in matter number U2020/1211.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 1 June 2020.

[2] Mr Colin McKerlie has lodged an appeal, for which permission to appeal is required, against various interlocutory and procedural decisions made by Deputy President Boyce.

[3] The background of the matter is as follows. Mr McKerlie lodged an application for an unfair dismissal remedy against the respondent, RateIt Australia Pty Ltd (RateIt). Mr McKerlie's dismissal took effect on 31 January 2020 and he filed his unfair dismissal application on 5 February 2020. That application is currently before the Deputy President.

[4] The appeal relates to a number of decisions or purported decisions by the Deputy President, which are characterised by Mr McKerlie as follows:

• the decision not to take any action in regard to the Mr McKerlie's complaint that the respondent's solicitors had committed extortion by sending a letter to Mr McKerlie demanding the performance of various demands before the respondent company would pay the him monies already owed to him (decision 1);

• the decision not to take any action in regard to the Mr McKerlie's complaint that the respondent and/ or the respondent's solicitors had committed conspiracy to defeat justice in order to put before the Commission a document that had been obtained by fraud (decision 2);

• the decision not to take any action in regard to the Mr McKerlie's complaint that the respondent's solicitors had sought to mislead the Commission by submitting a document purporting to be the Mr McKerlie's resume, constituted a "representation" by Mr McKerlie to the respondent relevant to the proceedings before the Commission (decision 3);

• the decision to give the respondent permission to have legal representation in the proceedings (decision 4);

• the decision to allow MKI Legal to represent the respondent in the proceedings (decision 5);

• the decision that the issue of "genuine redundancy" is a "jurisdictional objection" (decision 6);

• the decision to refuse to grant Mr McKerlie an adjournment to prepare submissions and evidence in regard to the issue of "genuine redundancy" (decision 7);

• the decision of the Deputy President on 12 May 2020 not to allow Mr McKerlie to file a statement and annexures relevant to his submissions regarding the issue of "genuine redundancy" (decision 8); and

• the decision of the Deputy President on 14 May 2020 to compel Mr McKerlie to prepare and file submissions on the issue of his application that the Deputy President recuse himself from further proceedings on the basis of his not being fit to hold judicial office, his demonstration of active prejudice and the apprehension of bias against Mr McKerlie both as a member of a class of persons, unrepresented workers, and personally (decision 9).

[5] Mr McKerlie's appeal was lodged on 29 May 2020. Decisions 1-3 and 5-7 relate to decisions said to have been made by the Deputy President at the jurisdictional hearing on 8 May 2020. In relation to decision 4, Mr McKerlie seeks to appeal the Deputy President's decision or purported decision to grant permission to RateIt to be represented by a lawyer in the proceedings.

[6] In relation to decision 8, Mr McKerlie filed and served a statement with various annexures and submissions on the issue of genuine redundancy on 12 May 2020. The Deputy President's chambers sent an email to the parties stating that leave had neither been requested nor granted for Mr McKerlie to tender or otherwise rely upon further evidence in the proceedings. Rather, leave had only been granted to Mr McKerlie to make further submissions on the jurisdictional issue of genuine redundancy, which he had already made. In light of the above, the Deputy President advised that the parties should proceed on the basis of the evidence filed as at 8 May 2020, that is, the time that RateIt's evidentiary case in the proceedings closed.

[7] In relation to decision 9, Mr McKerlie notified the Deputy President's chambers on 14 May 2020 that he would be making the submission that the Deputy President should recuse himself from further involvement in the conduct of the proceedings at the hearing on 15 May 2020. The same day, the Deputy President ordered the parties to file and serve any and all submissions and evidence that they sought to rely upon in respect of Mr McKerlie's recusal application prior to the recusal hearing which was held on 15 May 2020. The Deputy President also ordered that at the conclusion of the hearing, the matter would be adjourned to a date to be fixed, being a date post any decision and written reasons being issued in respect of the recusal application.

[8] Mr McKerlie has sought a stay of the decisions under appeal pending the hearing and determination of the appeal pursuant to s 606 of the Fair Work Act 2009. This decision concerns that stay application. Mr McKerlie asserts in his notice of appeal that a stay is necessary because:

"...a stay of the further conduct of the Fair Work Commission matter U2020/1211 generally and all decisions made by Deputy President Boyce in those proceedings to date, particularly his decision to conduct a hearing into his own fitness to hold judicial office and whether his unfitness to hold judicial office should lead him to disqualify himself from further involvement in that matter."

[9] In his submissions in support of his stay application, Mr McKerlie focused on his application that the Deputy President recuse himself for apprehended or actual bias or for unfitness to hold judicial office. In summary, he submitted that by reasons of various identified instances of conduct, the Deputy President had:

• undermined the public appearance of impartiality;

• demonstrated a lack of intellectual honesty, competence and personal standards;

• failed to treat Commission staff with courtesy and respect;

• acted in a manner that demonstrated political bias;

• failed to deliver reasons for judgment expeditiously or at all;

• failed to enhance public respect for the Commission and its reputation;

• did not respect the rule of law; and

• had prejudged the issue of whether the respondent in his unfair dismissal application should be granted permission for legal representation.

[10] Mr McKerlie's written submissions in support of his stay application included the following:

"37. My submission is that you should not only grant a stay in these proceedings, you should also publicly call for the President of the Fair Work Commission to temporarily restrict the duties of Deputy President Boyce and formally make a complaint yourself to the President urging him to initiate an investigation into Deputy President Boyce's conduct and fitness for office.

41. Deputy President Boyce is, apparently, currently reaching a decision on the issue of his own fitness to hold judicial office. Does that sound like a good idea? Is that in the interests of the administration of justice? Does that have the potential to cause harm to the reputation of the Fair Work Commission and its members? Is anybody going to do anything to stop that?"

[11] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd.[1] Paragraph [5] of that decision states:

"[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted."

[12] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant's full argument and usually will not have had the opportunity to properly peruse the case materials.[2]

[13] The application of the above principles is subject to the applicant for a stay demonstrating at the outset there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.[3]

[14] I do not consider that the application for a stay should be granted, for the following reasons. First, it is apparent that the fundamental purpose of Mr McKerlie's stay application is not to stay the operation of any particular decision, but rather to stay the proceedings before the Deputy President either altogether or at least until the Deputy President has been removed from further dealing with Mr McKerlie's application. However, s 606 does not authorise the stay of proceedings where an appeal has been lodged against an interlocutory ruling made in such proceedings.[4]

[15] Second, I am not satisfied on the basis of the grounds of appeal and the submissions made to this point that the appeal is arguable with reasonable prospects of success because:

• most of the "decisions" the subject of the appeal are merely interlocutory procedural rulings or steps which would not usually attract the public interest such as to properly found the grant of permission to appeal;

• insofar as the appeal concerns a purported grant of permission of legal representation to the respondent, I am not satisfied that there is a sufficiently arguable basis for Mr McKerlie's contentions that the respondent's lawyers have engaged in "criminal" or "improper" conduct;

• insofar as the appeal concerns contentions of an apprehension of or actual bias on the part of the Deputy President, the Deputy President has yet to rule on the recusal application made by Mr McKerlie (having reserved his decision on 15 May 2020), making it unlikely that permission to appeal in the public interest would be granted to deal with the bias issues before such a ruling is made;

• in proceeding to determining himself Mr McKerlie's application for his recusal, the Deputy President is acting in accordance with the conventional procedure for such applications under Australian law;

• I do not consider that it is arguable that the Deputy President, or indeed the Commission at any level, has power to rule upon the fitness of the Deputy President to hold office; and

• given that the Deputy President has not yet ruled on the issue of whether the dismissal was a genuine redundancy, I am not satisfied at this stage that there has been any arguable denial of procedural fairness.

[16] Third, I do not consider that the balance of convenience weighs in favour of the grant of a stay. In this respect, I regard as of determinative weight the fact that Mr McKerlie on 26 May 2020 filed an application in the Federal Court of Australia seeking the following relief:

(1) A writ of prohibition prohibiting the Deputy President from further involvement in Mr McKerlie's unfair dismissal application.

(2) A declaration that the Deputy President is not a fit and proper person to hold judicial office, particularly the office of Deputy President of the Commission.

(3) An order that Mr McKerlie's unfair dismissal application be transferred to the Federal Court to be heard together with other matters arising.

(4) An interlocutory injunction against the Deputy President from taking any further action or having any further involvement in Mr McKerlie's unfair dismissal application pending the determination of Mr McKerlie's application before the Court.

[17] This application is advanced on a basis that substantially overlaps with the matters raised in this appeal, including that:

"Deputy President Boyce has demonstrated that he is not a fit and proper person to hold judicial office by the following acts:

(i) Displaying inappropriate figurines in his office at the Fair Work Commission.

(ii) Installing a surveillance camera in his office at the Fair Work Commission in an apparent attempt to intimidate other members of the Commission staff who had complained about his display of inappropriate figurines causing him to be required to remove them.

(iii) Placing a lifesize cardboard cutout of Donald Trump in his office in an apparent attempt to bully and humiliate other members of the Commission staff by making a public demonstration of his support for various offensive and hostile attitudes commonly attributed to Donald Trump, such as misogyny, racism, intolerance, untruthfulness, criminality and incivility such as to demonstrate that he was ignorant of the fundamental dictates of judicial ethics.

(iv) Repeatedly demonstrating his personal incapacity and disinterest in the proper execution of his duties as a judicial officer through incompetence, laziness, ignorance and an apparent lack of mental capacity as evidenced repeatedly in decisions published by the Full Bench of the Fair Work Commission in a number of appeals against decisions made by Deputy President Boyce.

(v) Failing to take any action regarding criminal conduct contrary to the Fair Work Act and other statutes alleged by the Applicant in the Fair Work Commission matter against the officers and staff of the Respondent company and the Respondent company's solicitors in that action.

(vi) Repeating his demonstrated personal incapacity and disinterest in the proper execution of his duties as a judicial officer in the Fair Work matter by failing to announce decisions, failing to give reasons for decisions, demonstrating a lack of understanding of fundamental legal concepts such as the meaning of "jurisdiction" and demonstrating bias against the Applicant.

(vii) Failing to disqualify himself from further involvement in the Fair Work matter after the Applicant in those proceedings had made a formal complaint to the President of the Fair Work Commission regarding Deputy President Boyce's unfitness to hold judicial office, incompetence in the conduct of the Fair Work matter and bias against the Applicant in the Fair Work matter."

[18] It seems to me that in circumstances where the relief sought in Mr McKerlie's prior application to the Court - particularly the application for an interlocutory injunction - is substantially the same as the relief Mr McKerlie seeks before me, I should not proceed to consider the grant of any stay order before the Court has had an opportunity to deal with the matter before it. To do otherwise would simply serve to encourage and reward what I consider to be forum shopping.

[19] Additionally, because the Deputy President has yet to rule on Mr McKerlie's recusal application, I consider that a stay order would have no practical function in advance of the Deputy President's decision on that matter. If the Deputy President ultimately decides to recuse himself, then Mr McKerlie will have obtained the outcome he seeks and presumably the appeal will have no further purpose. If the Deputy President declines to recuse himself, then it will be open for Mr McKerlie to lodge an appeal against that decision. Either way, I presume the Deputy President will take no further action in respect of Mr McKerlie's unfair dismissal application until he determines the recusal application.

[20] Accordingly the application for a stay is dismissed.

[1] [2000] AIRC 785, Print S2639

[2] Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

[3] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

[4] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]

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