Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondents' costs of the application, subject to any constraints expressed in Birketu Pty Ltd v Atanaskovic [2025] HCA 2. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an application for leave to appeal from an order made by a judge of this Court dismissing an interlocutory application for leave to file a further statement of claim: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 4) [2024] FCA 179. 2 By way of background, the original statement of claim filed in the proceeding commenced on 29 September 2021 had earlier been struck out by the primary judge and ordered to be removed from the court file: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662. The applicant was ordered to pay the respondents' costs: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899. An appeal from those two decisions was dismissed by the Full Court: Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155 (Rares, Jackson and Halley JJ). The reasons of the Full Court contain a summary of the history of the underlying dispute between the parties that has been litigated unsuccessfully by the applicant before the Fair Work Commission and the Full Bench of the Fair Work Commission. The finding that the case that the applicant brought before the Fair Work Commission was beyond jurisdiction due to the absence of an employer-employee relationship seems to be the only reason why the proceeding before the primary judge was possible. The present application does not require any further consideration of any of those underlying matters. 3 This application is solely concerned with the question of whether the applicant has made a sufficient case for the grant of leave to appeal: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ); Mastercard Asia/Pacific Pte Ltd v Australian Competition and Consumer Commission [2024] FCA 1237 at [1]-[3] (Lee J). It is important to note that any appeal that the applicant seeks to bring must be directed to error in the order that was made by the primary judge, although such an error may be manifested in a reason that is directed to the order that is challenged. A mere dispute with a collateral reason that does not infect the order sought to be challenged will not suffice. Nor is it ordinarily relevant. It should be noted at the outset that the applicant's application for leave to appeal, his draft notice of appeal, and his written and, in places, oral submissions stray beyond those constraints. In part at least, the applicant apparently seeks to relitigate aspects of the history of the dispute which do not assist with the question of whether leave should be granted to appeal from the primary judge's decision not to allow him to file a further statement of claim in the form it was presented. 4 Given the limitations in both the application for leave to appeal and the written submissions, I endeavoured to assist the applicant in identifying errors in the primary judgment by reference to the proposed statement of claim for which the primary judge refused leave to file. That process took some time but, in short, no error in the primary judge's decision was able to be identified at any point in the process. The transcript of this hearing, if it was needed, would identify that process. The pleading was manifestly defective in the ways that the primary judge identified, and his Honour did not err in his findings. 5 In all the circumstances, I am not satisfied that there has been any error in the primary judge's decision to refuse leave to file the proposed statement of claim and, therefore, there is no injustice in not allowing an appeal to proceed. I say that, noting that, as Lee J pointed out in the passages in Mastercard referenced above, that in matters of practice and procedure, the second limb identified in Décor is ordinarily very difficult to establish because, rather than going through an appeal process, there is the option to re-plead, and this Court is generally very reluctant, therefore, to grant leave to appeal in relation to pleading disputes. In any event, as I have already said, no error has been identified. 6 A separate aspect of the application for leave to appeal concerned an allegation of apprehended bias on the part of the primary judge. The applicant referred to the conduct of earlier hearings before the primary judge, including at the case management stage in 2022, where it was said by the applicant that the primary judge had acted unfairly and gave a better run, so to speak, to the respondents in the matters that were before his Honour. 7 Two observations should be made. First, nearly all the points that the applicant raised were at the trivial end of the spectrum, such that even if they met the first limb of the two limbed test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ), they could not possibly have passed the second limb, in the sense that any such matters where there may have been some transient inclination one way or the other which, as I say, was not established in any event, could not be seen to have any bearing in relation to the determination of the application that was before his Honour which is the subject of this application for leave to appeal. 8 Quite to the contrary, for a pleading dispute of this nature, the primary judge has been meticulous. His judgment is lengthy and detailed. It consists of almost 16 pages, 55 paragraphs, and, quite to the contrary of indicating that there was anything awry, the careful reasons for judgment tends to rebut it. Further, and most importantly, the conduct which was relied upon for the allegation of apprehended bias concerned events that took place in 2022. 9 The primary judge heard the application for leave to file the proposed statement of claim on 7 February 2024. The applicant was unable to identify any reason why such an apprehension, if it was genuinely held, was not raised before his Honour, as is ordinarily required. It is well-established that issues of bias should be dealt with first, before dealing with substantive matters. I do not go so far as to draw an inference that the allegation of apprehended bias was not genuinely made in the sense that the applicant thought that he was entitled to raise it, because I think the real problem is that the applicant does not understand this and many other parts of the law. I am not able to conclude that he was making an allegation that he considered or may have considered to be false, as opposed to being baseless in law. It is, nonetheless, telling that he did not bring such an application at that time. 10 In all the circumstances, the application for leave to appeal was at all stages completely hopeless and doomed to fail. In my view, it should never have been brought. Accordingly, the application is dismissed. 11 Turning to costs, I am satisfied that this appeal proceeding was instituted without reasonable cause. I am also satisfied that the way in which it has been brought, the breadth of material that has been put in the appeal books, the width of the cases, the quality of the application for leave to appeal itself, the quality of the submissions, the quality of the submissions in reply, and a good deal of the oral submissions are such that they amounted to unreasonable acts or omissions and caused the respondents to incur costs. As such, I order for the applicant to pay the respondents' costs pursuant to s 570 of the Fair Work Act 2009 (Cth), subject to any constraints imposed by the decision in Birketu Pty Ltd v Atanaskovic [2025] HCA 2. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.