Fair Work Act 2009

s.394 - Unfair dismissal

Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants

Application for an unfair dismissal remedy - costs application - amount of costs

1. By way of a short background to a long-running matter, an application made by Prateek Patial pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy was dismissed by me in a decision[1] ("Substantive Decision") and order dated 6 August 2021. The respondent to the application, Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants ("Kailash"), subsequently made a costs application. Kailash's costs application was deferred pending the outcome of Mr Patial's appeal to a Full Bench of the Commission. The Full Bench declined to grant permission to appeal ("Appeal Decision")[2], with the result that the Substantive Decision was undisturbed. Further listings and directions then ensued in connection with the costs application. In a subsequent decision issued on 18 July 2022[3] ("Costs Decision"), I determined that Kailash had made out a case favouring its application for indemnity costs against Mr Patial. It is unnecessary for the purposes of this decision to outline the Substantive Decision, the Appeal Decision or the Costs Decision.

• [2] Following the Costs Decision, the matter was stood-over for about three weeks to allow time for the parties to see whether the costs amount could be agreed. In consequence of the fact that agreement on the costs amount was not reached, there were further listings and directions in relation to the quantification of the amount of costs, including in relation to Kailash's proposed expansion of the scope of its costs application (which was not eventually pressed). I decided to determine the matter of the quantification of costs on the papers. Directions were made accordingly. Kailash and Mr Patial subsequently respectively filed and served their submissions, together with supporting materials. Mr Patial also made an additional written submission on 10 October 2022, outside the timeframe in the directions, being an unsolicited submission that was filed and served shortly after Kailash's final submissions concerning the amount of costs.

• [3] Kailash's first round of submissions in relation to the amount of its costs attached certain supporting documents. Kailash's submissions relevantly read:

"15. In further support of the Cost Applicant's submission that the costs should be ordered as outlined in the Attachments, we file and serve the Cost Applicant's invoices 1 to 10 for legal fees and disbursements for transcription services on days 1 to 4 of the hearings incurred from 9 September 2020 to 23 July 2021 (collectively Invoices).

15.1 We note that at the request of the Cost Applicant, Employsure Law's fees were predominantly billed pursuant to a payment plan, being one third of the total cost of each invoice each month for three months. For this reason, invoices 1/2/3, 4/5/8, and 6/7/9 are identical.

15.2 Due to the overlapping billing periods, new invoices were raised before the end of the three monthly cycles in earlier invoices had concluded. For this reason, the invoices are not sequential in date or invoice number order.

16. Due to typographical errors, the total actual costs in the Attachment exceeds the fees paid by the Cost Applicant pursuant to the Invoices. ...

18. The Cost Applicant seeks that the Fair Work Commission make orders that the Cost Respondent pay the Cost Applicant's indemnity costs in the amount of $36,398.05 plus GST, as set out in the Attachments and Invoices."

• [4] Employsure Law Pty Ltd ("Employsure") had represented Kailash over the course of the proceedings concerning Mr Patial's substantive application for an unfair dismissal remedy and, at different points in time, in relation to Kailash's subsequent costs application. The principal Employsure representatives over the course of the proceedings were Sarah Christie (paid agent) and Troy Plummer (solicitor). After reviewing the invoices attached to Kailash's submissions in support of its costs application, I caused correspondence to be sent to the parties/representatives drawing attention to seemingly incomplete invoices and seeking provision of the complete invoices. On 15 September 2022, Employsure re-filed the submissions, together with a complete suite of invoices.

• [5] In subsequent submissions replying to submissions made by Mr Patial under the sub-heading "Bogus Invoices / Backdated invoices - Intentionally Misleading the Fair Work Commission", Kailash submitted that when its Employsure representatives copied files from historical records into new folders that were prepared for Kailash's costs submissions, the act of copying and pasting, or re-naming a file, had the effect of creating a new file which resulted in a new date of creation. Further, in compiling invoices and attaching the relevant fee schedules, new files were created which also had the effect of a new date of creation attaching to the files. Kailash denied that it had intentionally misled the Commission; whilst the compilation of materials may have resulted in new files being created, the information contained within the invoices and fees schedules, it was submitted, is original.

Mr Patial's submissions not responsive to the question of the amount of costs

• [6] Mr Patial's submissions were not responsive to the question of costs identified in Kailash's submissions and in the invoices. It suffices to say that Kailash's submissions encapsulated aspects of Mr Patial's submissions in the following description:

5. The Cost Respondent has made allegation of improper conduct by the Cost Applicant and the Cost Applicant's representatives.

6. Variously, though not a complete record, the Cost Respondent has made allegations of the Cost Applicant and its representatives:

7. The Cost Applicant denies unequivocally any allegation that it or its representatives have conducted themselves improperly.

8. The Cost Applicant does not intend to respond further or engage with the Cost Respondent's baseless allegations, as it is not a productive use of the parties or Commissioner McKenna's time.

9. The Cost Respondent's Submissions concern a large number of irrelevant submissions. The Cost Respondent states in the submissions at paragraph 12 that 'there is no point in writing the submissions'. In fact, the Cost Respondent does not address any relevant matters in his submissions. Specifically, the Cost Respondent's Submissions fail to address the relevant matter to be determined, being the appropriateness and reasonableness of costs incurred by the Cost Application [sic].

10. As a result, the Cost Applicant's submissions as to costs quantum are unchallenged.

11. In particular, the Cost Respondent has not traversed or challenged:

11.1 the appropriateness of schedule of costs detailing costs incurred;

11.2 the reasonableness of invoices and fee schedules detailing costs incurred; and

11.3 the appropriateness or reasonableness of the quantum of costs sought, being $36,398.05 plus GST."

• [7] I do not propose to address in this decision a range of matters that were not relevant to the amount of costs - including, but not limited to, the frankly preposterous assertions made by Mr Patial about his belief that I took a bribe from Employsure or "will receive a commission from Employsure Law for helping them in this matter." Similarly, despite Mr Patial's submissions, I do not propose:

• to effect a disqualification in relation to determining the amount of costs, because the grounds advanced by Mr Patial in seeking that I recuse myself are baseless;

• to make an order concerning cross-examination of Ms Plummer and Ms Christie, because I do not accept Mr Patial's submissions, based around certain date-coding/time-coding in the invoices, that they "have intentionally provided the bogus invoices to the Fair Work Commission";

• to take any steps to revoke my earlier decision and/or to have the matter reheard on the ground of a "miscarriage of justice". Mr Patial made his application for permission to appeal the Substantive Decision to a Full Bench. In the Appeal Decision, the Full Bench made no determination that the matter should be reheard (as noted earlier, permission to appeal was refused);

• to give directions to the Commission's General Manager to investigate the conduct of Amit Pall (who is a director of Kailash and its principal solicitor), Mr Plummer and Ms Christie, "concerning false evidence and submissions" - and give directions to the General Manager to investigate my own conduct - and/or stay the proceedings concerning the determination of the costs application pending the completion of the investigation sought by Mr Patial, because there is no cause for any investigation to be undertaken by the General Manager;

• to refer any matter concerning the costs application to a costs assessor approved by the Law Society of New South Wales. Mr Patial made that same submission or application in earlier proceedings (including, Mr Patial then also submitted, that Kailash alone should bear the costs of the assessment proposed to be conducted by a costs assessor). My earlier decision, which was advised to the parties orally when that application was initially made by Mr Patial, was that there would be no such referral (so Mr Patial is reagitating a matter that had already been ruled on).

• [8] In an additional submission that Mr Patial filed and served 10 October 2022 (outside the timeframe in the directions), Mr Patial also submitted: "... I seek that the matter should be referred to the President (retired justice) for investigation and should be reheard by an honest Commissioner/President". Although the submission is unclear, it seems that Mr Patial seeks to have various matters he has canvassed investigated by a retired judge and that a rehearing otherwise be conducted by a member other than me. I do not propose to refer matters to the President of the Commission with a view to him giving consideration to an investigation and/or a rehearing. That said, I have referred certain items of Mr Patial's complaint-laden correspondence and submissions to the President; I was bound to do so under the complaint-handling protocols that apply within the Commission when a complaint is made about a member.

• [9] I add that were it not for my concerns about Mr Patial's psychological well-being and/or capacity, with such concerns arising from the content and tenor of aspects of his oral and written submissions (with further concerns arising particularly from parts of the troubling content of emailed correspondence that Mr Patial sent to the Prime Minister, The Hon Anthony Albanese MP, and which Mr Patial copied to multiple recipients - the contents of which are unnecessary/irrelevant to repeat in this decision), I would otherwise have given consideration to further steps that I may have taken in relation to the contumelious assertions repeatedly made by Mr Patial over the course of the costs application proceedings.

• [10] As Kailash's reply submissions noted concerning the claimed amount of costs:

"30. The question relevantly before Commissioner McKenna and the parties is the appropriateness and reasonableness of costs incurred by the Cost Applicant. The Cost Respondent has not responded to this question in the Cost Respondent's Submissions.

31. [The] Cost Respondent's Submissions as to costs quantum are devoid of any challenge to the Cost Applicant's submission that its cost are [sic] reasonably incurred and that it is appropriate they be awarded in full. Absent any express contest or rejection of the Cost Applicant's submissions, the Cost Respondent is presumed to have admitted the costs are reasonable and appropriate."

• [11] Mr Patial determined that "there is no point in writing submissions", that being submissions relevant to Kailash's claimed amount of costs. Mr Patial's submissions read:

"12. I submit that there is no point in writing the submissions; use my resources and valuable time because you are biased and corrupt; you are already persuaded by the WHITE CHRISTIE [i.e., Employsure's Ms Christie] AND WHITE PLUMMER [i.e., Employsure's Mr Plummer] and have an understanding with them, and I am damn sure you will not find anything even if the evidence speaks for itself."

• [12] As to the preceding paragraph from Mr Patial's submissions, it may be noted that Mr Patial is a legal practitioner, with his own law firm. Against the background of the fact that Mr Patial is a practising solicitor, he may be taken to have been aware, or he ought to have been aware, of the consequences of failing to address in his submissions matters that were relevant to the claimed amount of costs. I accept Kailash's submission that there was "no contest between the parties in respect of the appropriateness or reasonableness of costs incurred by the Cost Applicant".

• [13] What is set out in Kailash's materials by way of costs and disbursements does not disclose any costs that were incurred unreasonably or which otherwise appear to involve charging in an unreasonable amount - particularly having regard to the nature of the case sought to be advanced by Mr Patial in the substantive proceedings, being a matter that I have earlier addressed in both the Substantive Decision and the Costs Decision. I will make the order for costs in the amount sought by Kailash, given the absence of anything relevant advanced by Mr Patial to contest the claimed money amount (other than a submission that certain invoice amounts do not tally, being a submission made by Mr Patial outside the timeframe in the directions) and because of my conclusion that what is claimed in costs does not disclose unreasonableness in the work undertaken or in the costs that were invoiced.

• [14] Mr Patial made submissions which raised a discrete matter that I consider should be addressed in this decision. Specifically, Mr Patial submitted:

"20. I submit that all the invoices are invoiced to Koala Investment Property Pty Ltd "Koala".

21. Koala is not a party to these proceedings. Accordingly, I submit all the invoices should be disregarded. (For your better understanding, Koala and Kailash Lawyers & Consultants are different entities with different ABN and ACN numbers)".

(A combination of black- and red-coloured text was used in the original, albeit not reproduced)

• [15] As to Mr Patial's submission in relation to the name of "Koala Investment Property Pty Ltd" ("Koala") as the addressee on the invoices, Kailash submitted:

"13. The Cost Respondent raises two issues with the Cost Applicant's invoices and fee schedules, filed and served 15 September 2022. Firstly, that the invoices intentionally mislead the Fair Work Commission because the files were recently created. Secondly, that the invoices are addressed to Koala Investment Property Pty Ltd (Koala Investment).

16. In respect of the second matter, the Cost Applicant submits that the Cost Applicant's details are relevantly contained in the description of the invoices and that it is clear for whom the services were provided. The Cost Applicant denies that this amounts to a deception or that the invoices should be disregarded in their entirety.

17. The invoices demonstrate prima facie that the work that has been completed for Kailash Lawyers and Consultants Pty Ltd T/A Kailash Lawyers and Consultants (Kailash Lawyers and Consultants). The essential element for the Cost Application is that the costs have been incurred by Kailash Lawyers and Consultants in responding to the unfair dismissal application. This is clear and true from the description of work completed.

18. The Cost Applicant submits that Kailash Lawyers and Consultants and Koala Investment are associated entities, being companies who have a single and shared director - Mr Amit Pall - in common. At law, associated entities are to be taken to be one entity [a footnoted reference to s.50AAA of the Corporations Act (2001) is included in Kailash's Submissions]. This is further evidenced by the address for Kailash Lawyers and Consultants and Koala Investment being identical. The Cost Applicant's and Koala Investment's address are identical on the invoices, F2 Unfair Dismissal Application and F3 Employer Response.

19. The Cost Applicant submits that because they are associated entities, there is a commercial benefit for Kailash Lawyers and Consultants and Koala Investment being a single client of Employsure Law Pty Ltd.

20. An innocuous and immaterial fact of having two entities on a single account is that when Employsure Law Pty Ltd generated its invoices for fees, both entities [sic] names usually appear on the invoice, save for where there is insufficient space.

21. As can be seen on the invoices, the space provided by Employsure Law Pty Ltd's accounting software provides insufficient space for both entity names. The words which appears [sic] immediately below invoice address on the top left of the invoices is 'Koala Investment Property Pty Ltd, Kaila'. Plainly, the software has cut off the full name 'Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants'. If there was sufficient space, the full name would appear on the invoice.

22. There is no reason behind which entity appears first on the invoice, beyond that it was the first one entered into the client database when Employsure Law Pty Ltd created its client's account.

23. The Cost Applicant submits that regardless of the name on the invoice address, the invoices are for work completed for Kailash Lawyers and Consultants and the liability to pay the invoice fell to Kailash Lawyers and Consultants."

• [16] Mr Patial is correct in his submissions that: (a) all the invoices are made out to "Koala Investment Property Pty Ltd"; and (b) Koala is not (and has never been) a party to the substantive unfair dismissal proceedings or the costs application. However, Kailash is also correct in its submissions that the words which appear in the invoice address section on the top left-hand side of the invoices are (relevantly) as follows:

• [17] That is, after the words "Koala Investment Property Pty Ltd" and a comma, the word "Kaila" next appears in the "Invoice address" section of the invoices (i.e., "Kaila" - as in a part-spelling or interrupted spelling of "Kailash" or "Kailash Lawyers Pty Ltd" or "Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants"). It is uncontested that Kailash and Koala share a common business address in Parramatta. I proceed on the basis of an acceptance of the submissions for Kailash: (a) that details specific to Kailash are relevantly contained within the descriptions in the invoices of the work undertaken and it is clear for which entity the Employsure services were provided; and (b) the invoices prima facie demonstrate that work of the type described in the invoices was undertaken by Employsure for Kailash, with an essential element being that the costs were incurred in Kailash responding to Mr Patial's unfair dismissal application.

• [18] Part of Kailash's submissions on this point included that Kailash and Koala comprise a "single client" of Employsure, in circumstances where Mr Pall is a single and shared director of both entities. As to that submission, I take notice of three Federal Court judgments[4] that have involved Mr Patial and the following respondents:

• as the first respondent in the Court proceedings - Kailash Lawyers Pty Ltd ACN 604 582 550 trading as Kailash Lawyers and Consultants (i.e., what I have referred to as "Kailash", being the respondent to Mr Patial's substantive application for an unfair dismissal remedy and the applicant in the costs application);

• as the second respondent in the Court proceedings - Koala Investment Property Pty Ltd ACN 603 793 308 trading as Koala Invest (i.e., the entity identified in the address section of the Employsure invoices (together with "Kaila")); and

• as the third respondent in the Court proceedings - Kuber Investment Group Pty Ltd ACN 602 779 199 trading as Kuber Projects.

• [19] In the first of the three Federal Court judgments, Goodman J set out the following background matters - including identification that Mr Pall is the sole director of (relevantly) Kailash and Koala:

"2 The applicant is a legal practitioner, practising in Parramatta. He is the principal solicitor of Santosh Lawyers and Consultants.

3 Mr Amit Pall is also a legal practitioner practising in Parramatta. Mr Pall is the sole director of:

(1) the first respondent. The first respondent trades as Kailash Lawyers and Consultants and Mr Pall is the principal solicitor within that practice;

(2) the second respondent, which trades as a real estate company; and

(3) the third respondent, which trades as a property development company."

• [20] Kailash submitted that the "innocuous and immaterial fact" of having two entities on a single account is that when Employsure generates its invoices for fees, both entities' names usually appear on the invoice save for where there is insufficient space. The submissions continued that the space provided by Employsure's accounting software provided insufficient space for the names of both entities, as can be seen on the invoices in relation to this matter. Here, the words which appear immediately below the invoices' address section on the top lefthand of the invoices are "Koala Investment Property Pty Ltd, Kaila" (my emphasis). Kailash further submitted: that Employsure's software "plainly" cut-off Kailash's full name in the invoices; if there was sufficient space, Kailash's full name would appear on the invoices; and there was no reason behind which entity appeared first on the invoices, beyond that it was the first one entered into the client database when Employsure created the account. Kailash also submitted that, regardless of having the Koala name (as well as the cut-off "Kaila") on the invoices' address section, Employsure's invoices were for work completed for Kailash and the liability to pay the invoices fell to it. There is nothing before me to contradict or challenge the submissions in such respects.

• [21] A consideration of the submissions advanced by Mr Patial and Kailash does not lead me to an acceptance of Mr Patial's contention that "all the invoices should be disregarded" on the basis that all the invoices contain reference to the Koala entity in the address section of the invoices. I accept Kailash's submissions about how it came to pass that the Koala name appeared on the face of the invoices followed by a comma, and then was next followed by the partly-spelt "Kaila" in the invoices' address section instead of the full spelling of, for example, only "Kailash Lawyers Pty Ltd", with or without its trading name of "Kailash Lawyers and Consultants". This was principally due to what was generated by Employsure's accounting software, in circumstances where Kailash and Koala are both clients of Employsure and Mr Pall is the sole director of each of the two companies.

• [22] It is unnecessary to purport (on what very little was before me on this contested matter) to finally decide whether Kailash and Koala are associated entities (but see, for example, Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Café Pender Place[5]), because of my conclusion that Kailash should not be deprived of its costs in this matter due to the happenstance of Employsure's accountancy software-generated names (and/or incomplete names) and addresses in the invoices it rendered for the work undertaken for Kailash in relation to Mr Patial's application for an unfair dismissal remedy.

• [23] Having regard to the foregoing, an order will issue separately requiring Mr Patial to pay Kailash's costs and disbursements in the (amended) claimed amount of $36,398.05 plus GST, as set out in Kailash's submissions with supporting attachments, by no later than 21 days after the date of this decision.

• [24] The proceedings concerning U2020/11942 are now concluded.

1. [1] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2021] FWC 4167 ("Substantive Decision").
2. [2] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2021] FWCFB 6055 ("Appeal Decision").
3. [3] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2022] FWC 1449 ("Costs Decision").
4. [4] (1) Patial v Kailash Lawyers Pty Ltd trading as Kailash Layers and Consultants [2022] FCA 662;

(2) Patial v Kailash Lawyers Pty Ltd trading as Kailash Layers and Consultants (No 2) [2022] FCA 899; and

(3) Patial v Kailash Lawyers Pty Ltd trading as Kailash Layers and Consultants (No 3) [2022] FCA 987.

[5] Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Café Pender Place [2015] FWC 8675.

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