Kennedy v Secretary, Department of Industry [2016] FCAFC 149 | Case summary

The appeal 42 Having dealt with the various applications we turned to the hearing of the appeal. This exchange occurred between the presiding judge, Flick J, and Mr Kennedy: MR KENNEDY: So I will probably leave at this point, and I'm not sure where I'm going but I just think, once again, the Federal Court is being unreasonable with me and I will just have to consider my options. FLICK J: Well, that is a matter for you, Mr Kennedy. When you said a moment ago you were going to leave, the course that I am going to pursue is to ask Mr Darams if he wishes to make some short submissions in relation to the disqualification application, and then I intend to proceed to hear your submissions in respect to the appeal. So I would urge you - - - MR KENNEDY: As I say, I - - - FLICK J: - - - I would urge you to stay because I would appreciate and the court would appreciate your assistance in relation to the appeal, but that is a matter for you. Mr Darams, do you wish to make any submissions in respect to the application to disqualify - - - MR KENNEDY: Just before you go, sir. Look, what I'm saying is I've given you enough evidence I am suffering from severe depression and anxiety and you're not hearing me. None of you are psychiatrists or doctors. I'm tired of the treatment I'm getting in the Federal Court. It's not in my interests to keep going and it's not in your interests to tell me to keep going. I want to finish this now and I want to get away. Right. FLICK J: If you want to finish it now we will achieve it. MR KENNEDY: That's what I've said to you, sir. FLICK J: Right. Well, let's move to achieve your objective. MR KENNEDY: Look, if we just - if they give me the papers back and I will just go and then you can continue from there. FLICK J: Well, I will repeat my invitation to you and my urgings to you to remain because the court would appreciate your assistance. … FLICK J: Mr Darams, do you wish to make some short submissions in respect to the application that I disqualify myself? MR KENNEDY: Could you just - could you just hang on until I leave, please. I don't want to hear it. FLICK J: Very well. That's a matter for you. We will wait for you to leave, Mr Kennedy. MR KENNEDY: Yes. Thank you. FLICK J: That is your choice. … FLICK J: Now, Court Officer, Mr Kennedy has left the room. Can you arrange to have copies of those documents, one for me, one for Mr Darams and have the originals returned to Mr Kennedy in due course. Thank you. Mr Darams, the application to disqualify, do you wish to make short submissions on that? 43 Counsel for the first respondent indicated that the first respondent relied on her written submissions in respect of the appeal (being submissions directed to the first respondent's interlocutory application for summary dismissal of the appeal, which was listed for hearing with the appeal). Counsel otherwise wished only to provide a copy of the transcript of the hearing before the primary judge and to draw our attention to certain parts of the transcript in response to ground 8 of the appeal in which Mr Kennedy contends that the primary judge failed to provide him with a fair hearing (effectively an allegation of a denial of procedural fairness) and a reasonable opportunity to present his case, said to be demonstrated by multiple alleged "failings and oversights". Given that Mr Kennedy had left the Court we directed the first respondent to file a list of references to the transcript on which the first respondent wished to rely in response to ground 8 and to serve on Mr Kennedy a copy of the transcript and the list. 44 The primary judge had before him an amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) under which Mr Kennedy sought the issue of constitutional writs of certiorari and mandamus (and costs) against the FWC as constituted by Commissioner Deegan in respect of her decision of 14 November 2013 (in fact, 19 December 2013) and as constituted by the Full Bench of the FWC in respect of its decision of 19 March 2014 (in fact, 10 June 2014). In the 19 December 2013 decision, Commissioner Deegan dismissed Mr Kennedy's application for an extension of time under s 394(3) of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against the first respondent, his former employer (Kennedy v Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] FWC 9932). In the 10 June 2014 decision, the Full Bench of the FWC dismissed Mr Kennedy's appeal against Commissioner Deegan's decision (Kennedy v Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2014] FWCFB 3530). 45 As at 24 December 2012, the date Mr Kennedy made his first application to the FWC, s 394 of the FW Act provided (as quoted by Commissioner Deegan in [2013] FWC 9932 at [25]): 394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to FWA [Fair Work Australia - the statutory predecessor to the FWC] for an order under Division 4 granting a remedy. [notes omitted] (2) The application must be made: (a) within 14 days after the dismissal took effect; or (b) within such further period as FWA allows under subsection (3). (3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. 46 As at 6 September 2013, being the date Mr Kennedy made his second application to the FWC, s 394 had been amended, with effect from 1 January 2013, so that it provided: 394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. [notes omitted] (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. 47 The difference between the two versions of s 394 is not material to this case. 48 In respect of the appeal to the Full Bench, s 400(1) of the FW Act provided at the time of the second application on 6 September 2013 "the FWC must not grant permission to appeal from a decision made by the FWC … unless the FWC considers that it is in the public interest to do so". The appeal provision in s 604 of the FW Act operates subject to the requirement that there be a grant of permission to appeal. The Full Bench held, at [47], that "[n]o single ground of appeal, or all of them cumulatively, are sufficient to attract the public interest". 49 Mr Kennedy's amended application before the primary judge set out two grounds for relief in these terms: 1. The jurisdiction of the Second Respondent pursuant to ss.400(1), 604 and 607 of the Fair Work Act 2009 (Cth) to grant permission to the Applicant to appeal but dismiss the appeal was conditional upon the Full Bench's determination that Commissioner Deegan had engaged in no appealable error. 2. Appealable error in the decision and orders of Commissioner Deegan existed as a matter of jurisdictional fact and accordingly, the Second Respondent misconstrued and/or did not exercise its jurisdiction according to law insofar at [sic] it dismissed the Applicant's appeal. 50 The primary judge (at [4]) concluded that: 4 … the grounds stated in the application were misconceived and do not identify any jurisdictional error which could lead to the grant of the relief sought. Properly understood, those grounds do no more than register disagreement with the way the Full Bench assessed the grounds and substance of the appeal before it. Moreover, the grounds stated in the application do not state the same case which the applicant argued in his written submissions. Those submissions attack the procedures employed by the Full Bench, but, again, they do not identify any jurisdictional error … 51 The primary judge recorded the relevant facts as alleged by Mr Kennedy, namely: (1) Mr Kennedy commenced employment in the Commonwealth Department of Industry on 31 January 2011. "The course of his employment was marred by disagreement with his supervisors from an early time. Following a series of performance assessments, the applicant was assessed as "unsatisfactory"" (at [5]). (2) Mr Kennedy offered his resignation by email on 24 July 2012 and it was accepted on that day. He left his employment on 26 July 2012 (at [6]). (3) Mr Kennedy lodged an "out of time unfair dismissal claim" with the FWC on 24 December 2012. The claim was conciliated, but conciliation failed. Mr Kennedy submitted a document on 5 March 2013 "closing the matter" (at [7]). (4) On 10 July 2013, Mr Kennedy sought to "re-open the proceedings". He contended that he had filed a notice of discontinuance on 5 March 2013 because he was under duress (at [7]-[8]). (5) Commissioner Deegan of the FWC rejected Mr Kennedy's application to re-open the matter on 22 August 2013 (Kennedy v Commonwealth of Australia Department of Industry, Innovation, Science & Tertiary Education [2013] FWC 6014) (at [8]). (6) Mr Kennedy lodged a further application for an unfair dismissal remedy under s 394 of the FW Act on 6 September 2013. This was outside the prescribed statutory time limit for the making of such claims by more than a year (at [9]). (7) On 19 December 2013, Commissioner Deegan dismissed Mr Kennedy's application (at [10]). (8) On 10 June 2014, a Full Bench of the FWC declined to give permission to appeal and dismissed the appeal (at [11]). 52 The primary judge noted that if Commissioner Deegan or the Full Bench of the FWC had "been satisfied that there were exceptional circumstances justifying an extension of time in which to bring an application alleging unfair dismissal, then it would have been open to the FWC to permit the applicant [Mr Kennedy] to bring an application for reinstatement notwithstanding the very lengthy delay in prosecuting that position" (at [17]). However: 17 … Because the question of exceptional circumstances was a matter to be established to the satisfaction of the FWC, any contention of error in the performance by the FWC of its statutory role would need to establish a misunderstanding of the matters to be taken into account or a failure to perform the role assigned to the FWC by the FW Act. In my view, the contentions of the applicant do not raise any respectable case to that effect. 18 Further, in order to succeed in the application to this Court for relief in the nature of constitutional writs against the Full Bench, it would be necessary for the applicant to show that the Full Bench had made an error in the exercise of its own role on appeal (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194). 53 This observation is consistent with authority. In Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537, Buchanan J with whom Allsop CJ and Siopis J agreed, explained: 52 In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 ("Coal & Allied"), the majority (Gleeson CJ, Gaudron and Hayne JJ) said of the role of a Full Bench of the Australian Industrial Relations Commission on appeal (at [31]): 31 There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) 47 SR (NSW) 416], it "'misunder[stood] the nature of [its] jurisdiction … or 'misconceive[d] its duty' or '[failed] to apply itself to the question which [s 45 of the Act] {s 45 was the appeal provision} prescribes', or '[misunderstood] the nature of the opinion which it [was] to form'". The Full Bench did none of those things. (Footnotes omitted.) {our note} … 55 It must therefore be understood that no attack, in proceedings of the present kind, is available against the Full Bench merely upon the ground of a dispute or quibble with the quality of the Full Bench reasons or the weight which it gave to particular aspects of the matter before it unless some error is demonstrated which may be said to have the result that the Full Bench has not really exercised the jurisdiction given to it, leaving the jurisdiction "in law constructively unexercised" and thereby exposing the Full Bench to an order that it perform the task it had failed to carry out (Hebburn; Coal & Allied) or, alternatively, that the Full Bench has purported to determine some matter outside its jurisdiction altogether (PSA [Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch [1991] HCA 33; (1991) 173 CLR 132]). 54 The primary judge noted (at [19]) that: 19 The jurisdictional errors alleged in the amended statement of claim filed on 12 December 2014 commence with a complaint of lack of procedural fairness and natural justice owing to the composition of the Full Bench. Those complaints relate to the "gender equity" of the composition of the Full Bench and alleged failures of prompt response to correspondence from the applicant. A series of complaints follow which allege a failure to deal with claims of presumed bias, a failure to notify the identity of all the members of the Full Bench in advance, failure to grant adjournments or allow adequate time for the hearing, that members of the Full Bench asked wrong and irrelevant questions and that the Full Bench "failed to reasonably review the exercise of power" by Commissioner Deegan. Then a series of complaints are recorded about the way in which the Full Bench dealt, or failed to deal, with particular findings of Commissioner Deegan. 55 The primary judge then explained why the allegations of error could not be sustained, including that: (1) "The constitution of a Full Bench is a matter for the President of the FWC pursuant to s 618(2) of the FW Act. The only restriction is that at least one presidential member (President, a Vice President or a Deputy President) must be on the Full Bench. The President's discretion is not subject to considerations of the kind the applicant alleged" (at [21]). (2) "A related complaint was that the applicant had not been told in advance who the other members of the Full Bench might be despite his specific request for that information. In his submissions he contended that the failure to provide that advice to him was a contravention of the FW Act. That contention has no substance. It betrays a mistaken belief by the applicant, in this and other respects, that the discretions and procedures of the FWC under the FW Act would only be exercised "justly" or "fairly" (and hence validly) if he had no occasion to object to them" (at [22]). (3) "No jurisdictional issue is presented by the discretionary refusal of an adjournment, or by the fact that the hearing of the appeal went ahead as listed. The present is not a case like Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [(Li)] where refusal of an adjournment signified failure to carry out a statutory task" (at [23]). (4) "The applicant complained that insufficient time had been allowed to hear the appeal, but he was told more time would be made available if necessary and, in fact, the hearing continued beyond the time allocated so that he could put all his oral submissions" (at [24]). (5) "The applicant alleged that he was disadvantaged by having to address whether granting permission to appeal would be in the public interest and that he was not informed by the FWC that such an issue would be considered by the Full Bench. The public interest consideration is a statutory pre-condition (FW Act, s 400). Before the Full Bench the applicant did in fact address both the merits of the appeal and the question of public interest. No jurisdictional issue arises from this complaint" (at [25]). (6) "The applicant complained that allegations of bias he made against the presiding member of the Full Bench were not formally dealt with before the hearing. I say "formally" because no doubt if the presiding member thought she should not sit she would not have done so. It is not now relevant that such an allegation was made unless there are grounds to think the allegation was well-founded as to actual or apparent bias. I see no support at all for any such suggestion. In fact, the Full Bench did refer to this complaint and explained why it had not been accepted" (at [26]). (7) "The applicant complained that he was required to seek leave to amend his grounds of appeal. The complaint has no merit. He was granted the leave which he sought" (at [27]). (8) "He complained about various procedural directions, and steps, and alleged shortcomings (including the content of one or two innocuous questions he was asked during the appeal), but none of those matters touch upon the jurisdiction of the FWC" (at [28]). (9) Mr Kennedy's complaints "included a challenge to the "weight" that the Full Bench gave to certain factors, an allegation that the Full Bench did not establish that Commissioner Deegan was qualified to exercise the jurisdiction of the FWC and that the FWC exhibited bias against the applicant in certain communications it had with the first respondent. There is no substance to any of these complaints. There is no basis to support a finding of jurisdictional error" (at [29]). (10) "There were further procedural complaints which seem to me, with respect, to proceed from the same misunderstanding by the applicant that the jurisdiction of the FWC (and the Full Bench in particular) depended upon a maintenance of "confidence and trust" by him in the processes he had initiated, such as the appeal itself" (at [30]). 56 The primary judge, at [33], summarised his view that: 33 None of the grounds of the application, or the submissions in support of them, raise any substantive legal issue, much less a jurisdictional one. Rather, they represent a series of procedural complaints and assertions. None of those complaints should be accepted. None of them appear to me to make out any coherent case of jurisdictional error. 57 The primary judge, at [35]-[36], also noted that: 35 There are two further procedural matters to mention. The applicant filed extensive written submissions which in fact exceeded a 40 page limit directed by Jagot J (the applicant's suggestion that "annexures" fell outside the limitation has no substance). He also filed quite lengthy submissions in reply. During the course of the applicant's oral submissions he complained he was not receiving a fair hearing and did not wish to continue. He was invited a number of times to continue with his submissions and put such further submissions as he wished to rely upon, relevant to the question of jurisdictional error. After a short adjournment, the applicant asked me to disqualify myself so that his application for judicial review could be heard by another judge. I declined to do so, whereupon the applicant withdrew from the proceedings and left the Court. I then took the submissions for the first respondent as I had indicated I would. The transcript of the proceedings will no doubt provide a sufficient record of the exchanges should review of the matter be necessary. 36 To the point where the applicant left the proceedings, the applicant had not added in any substantive way to contentions found in the various written submissions and the statement of claim. Indeed, he had dedicated his time to reading at length from them. I see no reason to doubt that the written submissions represented a sufficient foundation upon which to consider the applicant's arguments about jurisdictional error to which they were expressly directed. 58 The amended notice of appeal contains a series of submissions in the first 58 paragraphs and then 14 grounds of appeal, each followed by multiple paragraphs by way of particulars or further submissions. Without repeating each of the grounds it is alleged that the primary judge: (1) Failed to give proper consideration to the claimed jurisdictional errors and thus failed to undertake the required task of review properly in numerous ways (grounds 1, 2 and 3). (2) Made significant errors of law including with respect to the FWC's procedures, the FW Act and his refusal to recuse himself (ground 4). (3) Exceeded his powers by applying incorrect tests to his review of the functions of the FWC (ground 5). (4) Took into account irrelevant considerations including the length of the delay in bringing the second application to the FWC (ground 6). (5) Misunderstood the facts and made incorrect assumptions in numerous alleged ways (ground 7). (6) Failed to provide Mr Kennedy with procedural fairness by not giving Mr Kennedy a fair hearing and reasonable opportunity to present his case, including by not giving Mr Kennedy an opportunity to "provide input" into the test of relevance applied and by reason of bias and apprehended bias (grounds 8, 9 and 10). (7) Discriminated against Mr Kennedy (ground 11). (8) Failed to provide adequate reasons and reached a conclusion that was unreasonable and illogical (grounds 12 and 13). (9) Failed to comply with procedures including by not ruling on the first respondent's notice of objection to competency of the application and other matters (ground 14). 59 Mr Kennedy filed other documents which repeated these matters (with and without variations) and raised more "grounds" of appeal. 60 The difficulty with which the primary judge was confronted, and with which we also have had to contend, is that documents filed by Mr Kennedy to support his case are lengthy, repetitive, and difficult to follow. Mr Kennedy's grounds of appeal (grounds 1, 2 and 3 in particular) appear to suggest some error by the primary judge in not dealing with each and every one of Mr Kennedy's contentions on an individual basis. We do not accept that in so doing the primary judge failed to consider Mr Kennedy's claims or failed to give adequate reasons. The task of the primary judge was to identify whether, by reason of any contention of Mr Kennedy, the FWC had committed any error in the exercise of its jurisdiction capable of vitiating its decision. The primary judge explained why he considered that none of Mr Kennedy's contentions raised "any respectable case to that effect" (at [17]). That his Honour did so in a summary fashion, by reference to some specific contentions and otherwise to the kind of contentions Mr Kennedy made, does not disclose any error. 61 Mr Kennedy's contentions before the primary judge expose the many misconceptions which he holds about the jurisdiction of the FWC and this Court and the way in which that jurisdiction may and should be exercised. The misconceptions affected so many (probably all) of the arguments that Mr Kennedy made, and so many arguments were made, that it was neither possible nor desirable for the primary judge to identify, then reject, each individual contention. These misconceptions continued before us. If it is necessary to attempt to identify the misconceptions we would say only this - the strength of Mr Kennedy's belief that he has been treated illegally and unfairly does not transform that belief into fact. 62 We are unable to see any error by the primary judge. Without traversing every contention which Mr Kennedy has put in his written submissions, it is apparent that the primary judge carefully considered the decisions of the FWC and decided (correctly, in our view) that they were not vitiated by any error. To the extent we can understand Mr Kennedy's contentions to the contrary, it is not the case that the Full Bench misapplied the law or applied an incorrect test. To the contrary, the Full Bench recognised that Commissioner Deegan's decision was ultimately discretionary so that no error could be established merely on the basis that the Full Bench might have reached a different conclusion. The Full Bench correctly identified the nature of the task before Commissioner Deegan and before it. It concluded, as was open to it, that permitting Mr Kennedy's appeal would not be in the public interest. By s 400(1), the Full Bench was thereby required not to grant permission to Mr Kennedy to appeal. 63 The primary judge did not err in respect of s 618 of the FW Act. The constitution of a Full Bench of the FWC is a matter for it, not Mr Kennedy. The primary judge did not err in respect of the Full Bench's refusal to adjourn the hearing; within the limits imposed by the principle of legal unreasonableness (which was not engaged here), this was a discretionary decision for the Full Bench. His Honour did not err in rejecting Mr Kennedy's contentions that the Full Bench erred by asking irrelevant questions; the Full Bench was entitled to ask questions in the course of the hearing before it, about any matter it saw fit. His Honour did not err in respect of s 581A of the FW Act; s 581A concerns complaints about members and involves a process separate from the hearing of applications. 64 The primary judge did not take into account irrelevant considerations. The so-called irrelevant considerations on which Mr Kennedy relied are nothing more than statements in the primary judge's judgment which he was entitled to make and cannot, on any view, amount to appellable error. 65 The primary judge did not misunderstand the proceedings or the contentions Mr Kennedy made. His Honour correctly identified the task required to be performed by the FWC. 66 Mr Kennedy's contentions of denial of procedural fairness are also without merit. The transcript discloses that Mr Kennedy was given a proper opportunity to present his case. The fact that the primary judge made it clear during the course of the hearing that he did not accept two of the arguments Mr Kennedy was making does not mean that Mr Kennedy was denied procedural fairness. The primary judge heard the arguments (relating to gender equity in the constitution of the Full Bench and lack of consideration of Mr Kennedy's submissions and complaints about the constitution of the Full Bench) and told Mr Kennedy he did not accept them. That is quite proper; the arguments were hopeless and doomed to fail. 67 The primary judge did not have to permit Mr Kennedy to sit throughout the hearing. The primary judge asked Mr Kennedy if he had a medical condition requiring him to be seated and Mr Kennedy answered that he did not. Ultimately, when Mr Kennedy asked again to be seated while presenting his submissions the primary judge permitted him to do so. Mr Kennedy's other contentions in this category are equally without substance. For example: (1) Mr Kennedy appeared to be under the mistaken belief that correspondence he sends to the Registry or which is marked for the attention of a judge must be read and acted upon by the judge allocated to hear his matter. This is incorrect. Indeed, attempts to communicate unilaterally with a judge about a matter are improper. The proper course for a party wishing to raise any procedural issue about a prospective hearing is for that party to file an interlocutory application, or if that is not possible for some reason, at least provide, at the same time as communicating with a judge's Chambers, a copy to any opposing party. (2) The matter was listed for hearing at 10.00 am and thus his Honour was entitled to start the hearing at that time. The fact that the court was opened to the parties and public at 9.55 am (according to Mr Kennedy) so that he felt unable to arrange his papers does not involve any error by the primary judge. Parties should expect that a court will run on time and prepare themselves accordingly. (3) The primary judge was not required to deal with the first respondent's notice of objection to competency or interlocutory application to strike out Mr Kennedy's statement of claim or indeed any other procedural matter that Mr Kennedy wished to be addressed before calling upon him. Management of the hearing was a matter for the primary judge and the transcript discloses no unfairness or error inviting appellate intervention. (4) The primary judge was not required to "introduce the key issues as he saw them, the legislative context and how he intended to conduct the Hearing" at the beginning of the hearing. In any event, the primary judge informed the parties from the outset that the only issue which was relevant was jurisdictional error - that is, whether the FWC's decisions evidenced jurisdictional error so as to permit the grant of the writs of certiorari and mandamus as Mr Kennedy had sought. The primary judge explained to Mr Kennedy (more than once) the time that had been allocated for the hearing, the issue which he was required to determine, how he proposed to conduct the hearing, and informed him of the rulings he made in respect of documents Mr Kennedy had filed. (5) In respect of the primary judge's rulings excluding documents, the primary judge did not have to permit Mr Kennedy to rely on every document and submission Mr Kennedy wished to make. The primary judge was entitled to reject documents and submissions in the exercise of his discretion. Mr Kennedy's submissions do not identify why this is said to have involved error other than that it caused him to panic and threw his plans into disarray. It is apparent from the transcript of the hearing before the primary judge that he had read Mr Kennedy's written submissions and, appropriately, was not prepared to listen to Mr Kennedy read the very same submissions out loud. His Honour invited Mr Kennedy, repeatedly, to say anything he wished to say, additional to or in explanation of, the written submissions, and Mr Kennedy took that opportunity at some length. 68 The transcript does not support Mr Kennedy's claim that the primary judge engaged in "unrelenting oppressive conduct" towards Mr Kennedy. The hearing commenced at 10.01 am and Mr Kennedy left the Court at 11.55 am. For much of that time Mr Kennedy was making submissions. The primary judge's questions were proper, in the main directed either to his attempts to understand what Mr Kennedy was saying or to the (proper and reasonable) position that Mr Kennedy should not be permitted to read his written submissions out loud given that the primary judge had already read them. The primary judge did say to Mr Kennedy that there was "no point in you trying to be manipulative about this". Mr Kennedy made it clear he was offended by the remark and the primary judge withdrew the suggestion of manipulation by Mr Kennedy. The fact that the primary judge did Mr Kennedy the courtesy of withdrawing the word "manipulative" does not mean that it was wrong of the primary judge to use that word. The context was the primary judge had made it plain that he rejected Mr Kennedy's two arguments about the constitution of the Full Bench of the FWC. Mr Kennedy then said to the primary judge that he "appear[s] very closed and not open to hear my arguments". The primary judge's response, in which he used the word "manipulative", was intended to reiterate to Mr Kennedy that he had heard the arguments in question and had decided against them. In other words, the primary judge's mind was not "closed" against Mr Kennedy. Mr Kennedy had made two of his arguments but the primary judge simply did not accept them; the position could not be improved by Mr Kennedy wrongly suggesting that the primary judge's mind was closed, as it were, without having heard and considered the arguments. 69 Mr Kennedy's assertions of bias and apprehended bias on the part of the primary judge are without substance. Mr Kennedy appears to believe that a sufficient basis to allege an apprehended bias is the fact of his disagreement with (and consequential distress about) the primary judge deciding matters against him. Nothing in the transcript supports any suggestion that the primary judge did other than deal with Mr Kennedy's case on its merits. The fact that the primary judge found Mr Kennedy's case to lack merit does not indicate bias or apprehended bias. In this regard, we consider the primary judge was correct. The fact that the primary judge did not allow Mr Kennedy to rely on any document he wished, read aloud his written submissions or to sit instead of stand, and insisted upon the hearing being completed in the time allocated, also does not indicate any bias or apprehended bias. Nor does it disclose any form of judicial impropriety. Mr Kennedy being unrepresented does not mean that the primary judge was required to allow Mr Kennedy to do as Mr Kennedy saw fit in the conduct of the hearing. It was for the primary judge alone to decide how to manage the hearing, and provided the parties were given a fair opportunity to present their cases, there is no basis for any allegation of error. As noted, the transcript shows that Mr Kennedy had that opportunity; Mr Kennedy's belief to the contrary is inconsistent with the transcript. 70 Mr Kennedy's claims of discrimination against him based on complaints of a lack of guidance for unrepresented litigants in this Court and parties in other matters having been permitted to rely on submissions of greater length, even if correct, cannot amount to any error by the primary judge. 71 The primary judge's reasons are adequate and do not disclose any error. Indeed, we agree with them. The primary judge was right to conclude that Mr Kennedy's multiplicity of complaints about the decisions of the FWC were misconceived and incapable, on proper analysis, of amounting to any kind of error sufficient to found the issue of writs of certiorari and mandamus as sought. The primary judge's conclusions are not "unsupported"; the fact that Mr Kennedy disagrees with them does not advance his case. The primary judge was correct also to conclude that the facts of the present case bear no resemblance to Li - not every case in which an adjournment is refused is capable of amounting to a refusal to exercise jurisdiction. In Li, the refusal of the adjournment was objectively unreasonable in the particular circumstances. Despite Mr Kennedy's beliefs to the contrary, there were no equivalent circumstances in the present matter. Nor can Mr Kennedy's asserted inability to understand the primary judge's reasons found any error. Mr Kennedy's capacities of comprehension do not determine the adequacy of the primary judge's reasons. Further, the primary judge was not required to cite case law to support his conclusions where it was not necessary to do so. 72 The primary judge was not required to agree to recuse himself on Mr Kennedy's application. Nor, in the circumstances, was his Honour required to give reasons for his decision not to do so. Mr Kennedy made the application for the primary judge to disqualify himself on the basis of the conduct of the hearing. As we have said, the transcript discloses nothing in the conduct of the hearing which could support, on any rational basis, an allegation of bias or apprehended bias by the primary judge. As such, the primary judge was bound to reject the application and entitled to do so without giving reasons; the application, to any reasonable person, was manifestly hopeless because the foundation for it was nothing more than Mr Kennedy's perceptions of unfairness as a result of the fact that the primary judge disagreed with Mr Kennedy's arguments and refused to permit Mr Kennedy to do as he wished irrespective of previous directions and orders and the legitimate interests of the first respondent, the Court and the public generally to ensure appropriate use of the Court. In some cases - and this was one of them - the result is such that it "goes without saying". The giving of reasons in such a case would be nothing more than an empty recitation of the obvious. 73 The primary judge was not required to agree to Mr Kennedy's request that counsel for the first respondent "confirm that he was the true and correct author" of the first respondent's submissions. Nor was the primary judge required to respond to Mr Kennedy's assertion that because the first respondent's submissions were not signed they were inadmissible. The concept of admissibility applies to evidence, not submissions. There was no rational basis for Mr Kennedy to suspect that the submissions were other than what they purported to be - the submissions for and on behalf of the first respondent. 74 All of Mr Kennedy's other complaints fall into similar categories. A multiplicity of errors and failings by the FWC, both by Commissioner Deegan and the Full Bench, are alleged which are either not apparent from the FWC's decisions or which, even if they were accurate, could not on any rational basis found a conclusion that the FWC erred in such a way as to vitiate its decisions. The extent and depth of Mr Kennedy's misunderstanding of the judicial process is apparent from the further affidavits on which he wished to rely. For example, one affidavit (amongst other things) attached a complaint to the Chief Justice about the primary judge. The complaint is not evidence supporting the allegations made therein. It is evidence of nothing more than the fact of the complaint and Mr Kennedy's beliefs about the matters contained therein. As noted above, Mr Kennedy's beliefs are not evidence of objective facts. The complaint cannot advance his case on the appeal. Nor can his emails to the Registry about various perceived injustices. 75 There can be no doubt that Mr Kennedy has, as he puts it, lost faith in the Australian justice system. So much is evident from his conduct of matters in the FWC and this Court. This is unfortunate. However, his loss of faith, and the perceptions and beliefs upon which it is based, do not mean his contentions are necessarily valid. Assertions of unfairness and error do not gain weight by reason of the number of examples proffered, the strength of a person's subjective belief in their existence, or the opportunities taken for repetition. 76 Given these conclusions, the fact that Mr Kennedy left the hearing before making oral submissions does not cause us to consider that we should refrain from disposing of his appeal. Mr Kennedy filed numerous documents raising many issues said to constitute errors and acts of unfairness by the FWC and the primary judge. As we have explained, Mr Kennedy's contentions are without legal merit. As such, it is unnecessary to deal with the first respondent's application for the appeal to be struck out or summarily dismissed. 77 The appeal is unsustainable and must be dismissed. The first respondent may apply for costs within seven days if she so wishes, in which event directions will be made for the filing and service of submissions which will enable that question to be resolved without an oral hearing. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot and Bromwich.

The pre-hearing applications for removal of certain people 22 When the appeal was called for hearing Mr Kennedy, who was unrepresented, applied for an order that the Court officer, Mr Scott, and a member of the public, Ms Williams, be removed from the Court. 23 The transcript of the hearing records the following exchange between Mr Kennedy and the bench: FLICK J: Right. Now, we will come back and deal with the disqualification application first, but before we get to that, I will ask Justice Jagot to address the second matter, namely the application which has been foreshadowed for the extension of time, and, if time is extended, for leave to appeal. Justice Jagot. MR KENNEDY: Excuse me, sir. Can I make a couple of comments beforehand? FLICK J: Certainly. MR KENNEDY: Okay. I'm not comfortable about two persons in the courtroom at the moment. … FLICK J: … Now, you said you were uncomfortable about two people in court. MR KENNEDY: That's correct. FLICK J: Right. Who are those two people? MR KENNEDY: It's Mr Scott and Ms Williams at the back of the room. FLICK J: Well, Mr Scott is an officer of the court. What is the basis upon which you want him removed? MR KENNEDY: At a meeting that I had with Mr Scott at registry, he lost control of his emotional emotions and, in an outburst, he lied to me and called me a bully. FLICK J: Okay. With all - - - MR KENNEDY: And I made a complaint to the court, and I very politely asked that any hearing that I attend that Mr Scott not appear. I think it's a reasonable request, and this is the second time that it has been ignored. FLICK J: Well, in respect to that application, if it is an application, it's rejected. There are three members of the court, and if any member of the court sees any reason to question Mr Scott's continued attendance, they will raise it. So - - - MR KENNEDY: Well, I don't feel comfortable - - - FLICK J: - - - but until that situation arises, I will not ask - - - MR KENNEDY: I don't feel comfortable. FLICK J: - - - Mr Scott to remove himself. MR KENNEDY: I don't feel comfortable, sir, giving a hearing whilst Mr Scott is in the room - in the court, particularly that I am a self-representing litigant. FLICK J: Thank you. No. The application is rejected, Mr Kennedy. You said there were two things - sorry, Ms Williams; what's the basis for her - - - MR KENNEDY: She attempted to intimidate me at a Fair Work Commission hearing, sir. FLICK J: Well, the same comments will apply to her. Now, you said there were two matters. What's the second matter? MR KENNEDY: I said there were two persons - - - FLICK J: Two persons. MR KENNEDY: - - - and we've just addressed the two persons. FLICK J: Right. Well, I'm not going to ask either of those two people to remove themselves. One is a court officer, and - - - MR KENNEDY: Beg yours? FLICK J: One is a court officer, and another is a member of the public, and she has a right, as any other member of the public, to be here. If a question arises which attracts the attention of the court, it will be dealt with immediately. Now, Justice Jagot, if you can address the question as to the application for the extension of time. 24 As the above transcript extract discloses, the oral application by Mr Kennedy to have Mr Scott, a Court officer, and Ms Williams, a member of the public, asked by the Court to leave or ordered to be removed from the courtroom was refused prior to the hearing of the appeal by Flick J on behalf of all members of the Court. It is appropriate to provide reasons for that decision. 25 In addition to express powers to make suppression and non-publication orders contained in Part VAA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), this Court has an inherent or at least an implied power to supervise its own proceedings: Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17. Further, r 1.32 of the Federal Court Rules 2011 (Cth) provides a wide power to make any order considered appropriate in the interests of justice, although this does not permit orders to be made contrary to any other applicable statute, such as the Evidence Act 1995 (Cth). Accordingly, it is likely that there is power to make a removal order of the kind sought in an appropriate case. However, any such power must be exercised judicially and upon a proper legal and factual basis. A relevant consideration for the exercise of such a power is that s 17(1) of the Federal Court Act provides that, except as provided by that Act or another law of the Commonwealth, the jurisdiction of the Court "shall be exercised in open court". Moreover, any act which reduces public access to a court is required to take into account open justice as a primary objective of the administration of justice: Rinehart v Welker [2011] NSWCA 403 at [32]-[37] and the cases there cited. 26 If the exercise of the power requires relevant facts to be established for the order to be made upon a proper basis, those facts must be proven, not merely asserted, and in an appropriate case, tested. In this situation, that was necessary because Mr Kennedy relied entirely upon events that he alleged had taken place on prior occasions and necessarily at times and places unable to be observed by any of the members of the Court. 27 Mr Kennedy made assertions from the Bar table about prior conduct of Mr Scott that were unsupported by any evidence. Moreover, Mr Scott was not a participant in the proceedings in any way, beyond fulfilling the function of a Court officer assisting the Court at the hearing of the appeal, although it would seem he did have some prior dealings with Mr Kennedy in his capacity as a staff member of the Court in the Australian Capital Territory Registry. The appeal was being heard in that registry. It is a small registry with limited staff to carry out the various functions required of them, including supporting the conduct of the hearing of Full Court appeals from time to time, above and beyond the usual workload and responsibilities. If there was any proper factual basis to require the Court to find someone other than Mr Scott to fulfil his duties, Mr Kennedy had ample time to produce evidence to prove why that was necessary. He has not done so, instead making only allegations and general assertions of discomfort. Accordingly, there was no proven factual or legal basis for making the order or request sought in respect of Mr Scott, let alone any compelling argument for that to take place. 28 The situation in relation to the application to exclude Ms Williams from the courtroom was even less satisfactory. It was alleged by Mr Kennedy, again from the Bar table and without evidence, that Ms Williams had, in some unspecified way, attempted to intimidate Mr Kennedy at a Fair Work Commission hearing. Such a serious allegation required strict proof. A bare allegation, without any basis for complaint being apparent to the Court, is not an acceptable basis for any court to order, or even request, a member of the public to leave a courtroom. That is all the more important when regard is had to the principle of open justice referred to above and the related need for court proceedings to be freely accessible by members of the public, irrespective of whether or not they have any interest in the proceedings. 29 It follows that there was no proven factual basis or legal basis for the application to request or order Ms Williams to leave the courtroom.

Kennedy v Secretary, Department of Industry

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