//
[77]
[2020] FWCFB 1014
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-03-20
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2019] FWC 8343 of Deputy President Anderson at Adelaide on 10 December 2019 in matter number AB2019/601 - s.596 representation - recusal - postponement of proceedings - interim application - application to revoke stay decision - application to reconstitute Full Bench.
[1] Mr Igor Grabovsky has lodged an appeal, for which permission is required, against a statement issued by Deputy President Anderson on 10 December 2019 (Statement)[1] and consequential directions (Directions).[2] The Statement and Directions were made in respect of Mr Grabovsky's application for an order to stop bullying (stop bullying application).
[2] Mr Grabovsky sought a stay of the Statement and Directions pending the hearing and determination of the appeal. The stay application was not granted (Stay Decision).[3]
[3] Mr Grabovsky also made an application that we revoke the Stay Decision on the basis that it was made illegitimately (revocation application) and sought that this Full Bench be reconstituted based on an erroneous view that the presiding member is now a named respondent to the stop bullying application.
[4] For the reasons that follow, we have decided:
(a) not to grant permission to appeal in relation to the Statement and Directions;
(c) to refuse the application to reconstitute this Full Bench.
[5] Mr Grabovsky filed the stop bullying application on 21 October 2019. He named the Commission as the employer respondent. Mr Grabovsky contends that while representing his wife, Mrs Inna Grabovsky in other proceedings before the Commission, he was bullied by each of the persons set out at Attachment A to the stop bullying application. These persons comprise of a number of current and former Commission members, the General Manager and a staff member of the Commission.
[6] On 18 November 2019, the Commonwealth lodged a response to the stop bullying application in which it raised a number of jurisdictional objections.
[7] The stop bullying application was the subject of a directions hearing before the Deputy President on 9 December 2019. Mr Grabovsky appeared on his own behalf. Australian Government Solicitors (AGS) appeared for the Commonwealth. At the directions hearing:
(c) The Deputy President sought to obtain the parties' views on case management matters before adjourning the proceedings in light of Mr Grabovsky's "unruly conduct."[8] The Deputy President subsequently issued the Directions.
[8] The Deputy President determined that it was inappropriate to deal with Mr Grabovsky's application for interim orders preventing named members of the Commission from dealing with extant proceedings including matters C2018/3690, C2019/6622 and C2019/5979 until the determination of his stop bullying application. The Deputy President made a direction to that effect (interim application decision).[11]
[9] The Directions subsequently issued by the Deputy President directed as follows:
1. The Commonwealth of Australia (Commonwealth) provide a written submission on each of the jurisdictional issues it advances by close of business (5.00pm ACDT) 24 December 2019.
2. Mr Grabovsky file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020.
3. A person named, if they so wish, file a written submission on the jurisdictional issues by close of business (5.00pm ACDT) 14 January 2020.
4. The Commonwealth file a written submission in reply by close of business (5.00pm ACDT) 28 January 2020.
5. Mr Grabovsky's application dated 11 November 2019 (for interim orders concerning other proceedings in the Commission) be adjourned pending my determination of the jurisdictional issues.
6. Mr Grabovsky's request that these proceedings on his anti-bullying application be adjourned to enable private representations to be made to the Attorney-General's department be refused.
7. Mr Grabovsky and the Commonwealth, in making their written submissions on jurisdiction, are directed to also address the view expressed by former Deputy President Gooley in her letter of 5 December 2019, being her contention that the application insofar as it concerns former members of the FWC should be withdrawn or dismissed on the basis (so it is said) that former members no longer exercise jurisdiction over proceedings and are thereby incapable of placing Mr Grabovsky at "risk" of future bullying at work within the meaning of section 789FF(1)(b) of the Fair Work Act 2009.
8. Should the Commonwealth or Grabovsky wish to place further submissions before me on representation that they do so according to the aforementioned timetable; that is, the Commonwealth by 24 December 2019, Mr Grabovsky by 14 January 2020 and the Commonwealth in reply by 28 January 2020.
[10] In the notice of appeal, Mr Grabovsky alleges that the Statement "constitutes an attack on the principles of democratic governance." It is contended that the Deputy President:
(c) acted in breach of the fundamental principles of law;
(f) tampered with evidence by denying the obvious and misrepresenting the facts; and
(g) created a juristic environment that is incompatible with procedural, juristic and judicial norms and that the Deputy President "is attempting to proceed dealing with matter AB2019/601 in this environment for ill purposes and for the benefit of the offenders listed in the [stop bullying application]."[12]
[11] On the face of the notice of appeal, Mr Grabovsky seeks to appeal the Statement in its entirety "and the Directions based on the Decision."[13] We therefore proceed on the basis that this includes the provisional representation decision, the recusal decision, the postponement refusal, the interim application decision, and the Directions.
[12] Mr Grabovsky contends that the grant of permission to appeal is in the public interest because the Statement is a "fraudulent official instrument (in a long line of fraudulent instruments made by the FWC in all matters with the Appellant's participation)."[14] It is in the public interest to "stop the circulation" of such instruments in the judicial system, thereby preventing their use as an authority to harm uninformed litigants.[15]
[13] Mr Grabovsky filed written submissions dated 6 February 2020. These submissions traversed a broad range of matters unrelated to the subject matter of the appeal. To the extent that the submissions relate to the subject matter of the Statement and Directions, they are summarised below.[16]
[14] In the Statement, the Deputy President referred to his provisional representation decision in the following way:
"My provisional decision was that the AGS had standing as of right to appear on behalf of the Commonwealth of Australia and in that capacity was able to represent the FWC in these proceedings without requiring permission. I was satisfied that the FWC was a non corporate Commonwealth entity and that an officer of the AGS was an officer of the Commonwealth and that the exemption to requiring permission in section 596(4)(b) of the FW Act applied."[17]
[15] The Deputy President also stated, on a provisional basis, that were he required to consider the request for permission, he would grant permission pursuant to s.596(2)(a):
"I also indicated, on a provisional basis, that were I required to consider the request for permission I would grant the request for the purposes of jurisdictional proceedings as I was satisfied that section 596(a) was made out as those issues raised a significant level of complexity. I indicated that I recognised that Mr Grabovsky was self-represented and that I would, consistent with my responsibilities, ensure that he was able to fairly participate in proceedings and advance his case including on the jurisdictional issues notwithstanding being a lay advocate."[18]
[16] While the provisional representation decision was said to apply until further order, the parties were given an opportunity in the Directions to make further submissions in writing on the issue.[19]
(a) AGS is "attempting to act for and on behalf of the FWC (a tribunal) in matter AB2019/601 and the AGS is acting in breach of the Commonwealth law to prevent the hearing of the substantive issues of matter AB2019/601;" and
(b) "according to the Constitution of Australia and the applicable laws of the Commonwealth, the AGS involvement, as a legal representative of the FWC in the jurisdiction of the FWC, constitutes an abuse of process, power and it breaches the constitutional postulate of Separation of Powers. The manner, the AGS officers are attempting to achieve their objectives, amounts to professional misconduct purported to pervert the course of justice and to cover up for the offences committed by the members of the FWC."[20]
[18] Mr Grabovsky made an oral application that the Deputy President recuse himself.[21] We understand that the basis for this application was Mr Grabovsky's objection to the provisional representation decision. To this end, Mr Grabovsky submitted that the provisional representation decision was a continuation of the bullying by members of the Commission. He contended that the Deputy President refused to obey the law in making the provisional representation decision,[22] that it was pre-determined,[23] and the Deputy President failed to listen to his submissions.[24]
[19] The Deputy President refused the recusal application and stated as follows in the Statement:
"I delivered a decision ex tempore on the recusal issue.
I dismissed the application for recusal on the ground that I was not satisfied that an objective observer of proceedings would consider that I was unable to bring an independent and unbiased mind to the proceedings. I rejected the submission that my provisional decision was pre-determined or objectively capable of being seen as such, or that I had in any objective sense failed to take into account Mr Grabovsky's submission or was objectively capable of being seen as not having done so."[25]
[20] Mr Grabovsky raises concerns regarding the way he considers that his submissions were received by the Deputy President.[26] Mr Grabovsky contends that the Deputy President falsified and misrepresented "the essence" of his submissions and tampered with information provided by him. This is alleged to have resulted in a "fraudulent official instrument," being the Statement. However, these concerns are not further particularised.
[21] Mr Grabovsky requested that the proceedings be postponed to enable him to refer his concerns regarding representation of the Commonwealth by AGS to the Attorney-General's Department. The Deputy President did not consider it appropriate to delay the proceedings on this basis. Specifically, the Deputy President said having regard to s.789FE of the Act:
"...Nor do I consider it appropriate to delay dealing with the jurisdictional issues to allow Mr Grabovsky to make private representations to the Attorney-General's department. The legal issues before me require determination. The FW Act proposes that applications of this type be dealt with as promptly as possible."[27]
[22] Mr Grabovsky's submissions do not, as far as we can discern, identify any error with the postponement refusal.
[23] Mr Grabovsky's application for interim orders was declined by the Deputy President, on the following basis:
"I also consider that until the jurisdictional issues are determined, it is inappropriate for me to deal with Mr Grabovsky's application for interim orders concerning other proceedings before the Commission. The interim orders application itself raises legal questions, such as whether a member of the Commission seized only of an application under part 6-4B of the FW Act (anti-bullying) has any power to make the orders sought. Until such time as I have an anti-bullying application that is properly before me, in the sense of an application which has lawfully invoked the anti-bullying jurisdiction and of which I am seized, it is not possible to lawfully exercise (were I able) the power to make the interim orders sought by Mr Grabovsky."[28]
[24] Mr Grabovsky's submissions do not, as far as we can discern, involve any challenge to the Deputy President's approach.
[26] The Commonwealth submits that permission to appeal ought not be granted. It says that there is no merit to the appeal grounds sought to be raised by Mr Grabovsky, no error in the Statement and Directions made by the Deputy President and there would be no public interest in the hearing of an appeal arising from the Statement and Directions, which are interlocutory in nature.[30]
[27] 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.[31] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[28] 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.[32] The public interest is not satisfied simply by the identification of error,[33] or a preference for a different result.[34] However, the public interest may 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."[35]
[29] Permission to appeal may otherwise be granted on discretionary grounds. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[36] 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.[37] 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.[38]
[30] The appeal before us concerns interlocutory and procedural matters. This is relevant to the determination of whether permission to appeal should be granted. Courts and tribunals have generally discouraged interlocutory appeals on the basis that they may prolong the proceedings and increase costs.[39] Further, permission to appeal is rarely granted in appeals against interlocutory or procedural decisions which do not involve the determination of any substantive issue.
[31] For the reasons that follow, Mr Grabovsky has failed to establish an arguable case of appealable error.
[32] Firstly, the decision made by the Deputy President in respect of representation was expressed as a provisional decision. The matter has not been determined to finality. This is evidenced by the fact that the Deputy President invited written submissions from the parties in respect of his provisional view in the Directions. Accordingly, an appeal in respect of the provisional representation decision is devoid of merit.
[33] Secondly, there is no error in either the approach taken to, or the decision to refuse, the recusal application. The basis for Mr Grabovsky's recusal application was that the provisional representation decision was predetermined and the Deputy President failed to listen to him.[40] For there to be any merit in this appeal ground, what must be firmly established is a reasonable apprehension that the Deputy President's mind was so prejudiced in favour of a conclusion already formed that he would not alter that conclusion, irrespective of the submissions presented to him.[41]
[34] The transcript of the directions hearing discloses that there is no basis whatsoever for Mr Grabovsky's contentions. The Deputy President invited, and plainly had regard to, the oral submissions made by the parties during the directions hearing on the issue of representation.[42] That the Deputy President did not determine the provisional representation decision in Mr Grabovsky's favour does not give rise to a reasonable apprehension of prejudice such that the Deputy President had predetermined the issue. The Deputy President was correct in concluding that an objective observer of the proceedings would not reasonably apprehend that he was unable to bring an independent and unbiased mind to the determination of the stop bullying application.[43]
[35] Thirdly, the appeal grounds and submissions do not articulate any challenge to the Deputy President's decision to refuse Mr Grabovsky's application to postpone the proceedings or the interim application decision. In respect of the postponement refusal, it is sufficient to observe that the Commission has broad discretionary powers in determining the procedure to be followed in matters before it.[44] Further, it is apparent that the Deputy President merely deferred or adjourned consideration of the interim application pending determination of the Commonwealth's jurisdictional objection. The stop bullying application has not been determined to finality. Mr Grabovsky's submissions do not identify any error with either the postponement refusal or the interim application decision, and neither do we.
[36] Fourthly, the Directions do not make any final or substantive ruling upon any of the matters in issue between the parties. Importantly, the Directions:
(a) invite submissions on the question of representation of the Commonwealth by AGS, thereby reflecting the provisional nature of the Deputy President's provisional representation decision;
(b) adjourn (but do not dismiss) the interim application pending determination of the jurisdictional issues; and
(c) otherwise invite Mr Grabovsky's submissions on the jurisdictional objections advanced by the Commonwealth.
[37] Each of these directions are interlocutory procedural steps in Mr Grabovsky's stop bullying application, in respect of which no reviewable decision has been made. Further, having regard to our conclusions in respect of the provisional representation decision and the recusal decision, there is no basis for Mr Grabovsky's submission that the Directions are not legitimate or that they are based on a fraudulent decision. Such a claim is without merit and is rejected.
[38] We are not persuaded that there is any proper basis for granting permission to appeal, either in the public interest or on discretionary grounds. Mr Grabovsky has not made out an arguable case of error in respect of either the Statement or Directions. Nor are we satisfied that the Deputy President's approach is attended by sufficient doubt such as to warrant reconsideration, or that any substantial injustice will occur by refusing permission to appeal. The Statement and Directions, which are interlocutory matters and which do not determine any substantive issue to finality, do not raise any question of law or general principle worthy of consideration at the appellate level.
[41] This submission was rejected by Deputy President Young on the basis that s.606(2)(d) of the Act enables a Deputy President to exercise the power to order a decision be stayed under s.606(1).[47] The Deputy President correctly interpreted and applied s.606 of the Act and set out, in clear terms, her reasoning in the Stay Decision. Accordingly, the basis advanced for the revocation application is unsustainable. Despite being given the opportunity, no further submissions were made by Mr Grabovsky in support of the revocation application.[48] We are not satisfied that there is any basis for revoking the Stay Decision.
[42] The application to revoke the Stay Decision is dismissed.
[43] Mr Grabovsky seeks that this Full Bench be reconstituted. We understand that this request is made on the basis of an erroneous view that the presiding member is now a named respondent to the stop bullying application, being the matter under appeal.
[44] However, the factual basis for this submission is misconceived. The stop bullying application has not been amended to add the presiding member as a named respondent. This position was explained to Mr Grabovsky during the proceedings before us.[49] Nonetheless, Mr Grabovsky considers that his application to amend the stop bullying application has been obstructed by the Commission.[50]
[45] We invited Mr Grabovsky on two occasions to make any further submissions in support of his application.[51] However, he did not exercise this opportunity.[52] As Mr Grabovsky's application is based on a misapplication of the facts, his request to reconstitute this Full Bench is without merit and is refused.
[4] Transcript of proceedings dated 9 December 2019 (9 December Transcript) at [19]
[5] Statement at [24]-[30]; 9 December Transcript at [163]-[167]
[7] Statement at [31]-[34]; 9 December Transcript at [208]-[212]
[9] 9 December Transcript at [91] and [234]
[10] Statement at [27] and [38]; Directions at [6]
[11] Statement at [39] and [45]; Directions at [5]
[16] A further document was filed by Mr Grabovsky on 28 February 2020, post-dating the appeal hearing before us on 25 February 2020. The 28 February 2020 document does not advance the appeal grounds and otherwise reproduces the submissions made orally before us at the appeal hearing
[19] Statement at [30] and [48]; Directions at [8]
[20] Appellant's submissions dated 6 February 2020 at [2.2] and [2.3]
[26] Appellant's submissions dated 6 February 2020 at [2.4]-[2.8]
[29] Appellant's submissions dated 6 February 2020 at [2.8]
[30] Submissions of the Commonwealth of Australia dated 20 February 2020
[31] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[32] O'Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]
[33] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]
[34] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[35] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]
[36] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [1998] FCA 1404; (1998) 89 FCR 200 at 220; Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [26]
[37] Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30]
[38] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[39] See In re the will of F.B. Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris
Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of
Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per
Giudice J, Hamilton DP and Hingley C; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd
[2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524
[41] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100
[42] Statement at [25]-[29] and 9 December Transcript at [163]-[168]; see also 9 December Transcript at [30]-[162]
[43] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. See also Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 233 [36] (McHugh, Kirby and Callinan JJ)
[45] Pursuant to ss.603(1) and 603(2)(a) of the Act
[46] Appellant's submissions dated 6 February 2020 at [5.1](iii)
[47] [2020] FWC 615 at [13]-[21]
[48] Transcript at [87] and [95]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343
[52] Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343
Printed by authority of the Commonwealth Government Printer
Igor Grabovsky
Fair Work Commission [2020] FWCFB 1014
(2001) 116 FCR 481
(2000) 205 CLR 337
(2011) 192 FCR 178
(1998) 89 FCR 200
(1981) 148 CLR 170
(1990) 33 IR 431
(1990) 170 CLR 70
(2003) 195 ALR 225
(1978) 20 ALR 323