Fair Work Act 2009

s.604 - Appeal of decision

Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants

Appeal against decision [2022] FWC 2721 of Commissioner McKenna at Sydney on 28 October 2022 in matter number U2020/11942 - application for a stay order dismissed

• [1] Mr Prateek Patial has lodged an appeal, for which permission is required, against the following decisions and orders:

• (a) a decision made by Commissioner McKenna in Sydney on 6 August 2021 (reissued on 24 August 2021 after corrections) dismissing Mr Patial's application for an unfair dismissal remedy (the Substantive Decision);[1]

• (b) an order giving effect to the Substantive Decision dated 6 August 2021 (the Substantive Order); [2]

• (c) a Full Bench decision made in Sydney on 24 November 2021 declining to grant Mr Patial permission to appeal against the Substantive Decision (Appeal Decision);[3]

• (d) a decision made by Commissioner McKenna in Sydney on 18 July 2022 in which she determined that Mr Patial was required to pay the costs of Kailash Lawyers Pty Ltd on an indemnity basis (Costs Decision);[4] and

• (e) a decision[5] and corresponding order[6] of Commissioner McKenna in Sydney on 28 October 2022, in which she determined that the amount of costs Mr Patial was required to pay Kailash Lawyers Pty Ltd was the sum of $36,398.05 plus GST (Second Costs Decision), with payment to be made within 21 days.

• [2] The Appellant has applied for a stay order pursuant to section 606 of the Fair Work Act 2009 (Cth) (Act). This decision deals only with the application for a stay order.

• [3] Section 606 of the Act provides as follows:

"Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(3) This section does not apply in relation to a decision to make a protected action ballot order."

• [4] In deciding whether to exercise its discretion to grant a stay order under section 606(1) of the Act, the Commission must be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.

• [5] The question to be determined is whether any of the Decisions or Orders the subject of the appeal should be stayed pending final determination of the appeal. The grounds of appeal are examined to consider whether they disclose an arguable case of error, with some reasonable prospect of success on appeal.

• [6] The application for a stay was dealt with at a hearing on 5 December 2022. Mr Patial appeared for himself. Ms Sarah Christie of Employsure Law Pty Ltd sought permission to appear for the Respondent as a paid agent.

• [7] I declined to grant the Respondent permission to be represented for the purpose of the hearing of the stay application, noting however that the Respondent may separately seek permission to be represented at the hearing of the substantive appeal.

• [8] Mr Patial's grounds of appeal are set out in 103 paragraphs, with further grounds set out in section 1.2 of the Form F7 Notice of appeal. The content of paragraphs 21 to 103 replicates the grounds of appeal filed by the Appellant and dealt with in the Appeal Decision. The Notice of appeal is replete with highly offensive accusations of corruption, racism and bias against Commissioner McKenna and accusations of evidence tampering, perjury, and collusion by the Respondent's witnesses. Similar accusations against the Commissioner were made by the Appellant in his submissions in response to the application for costs. There is no basis to sustain these contentions, and such serious allegations should not be made without a proper basis. That such serious allegations are repeatedly made without proper foundation by a legal practitioner, such as Mr Patial, is inexcusable. Mr Patial's attention is drawn to s.674(1) of the Act which provides a person commits an offence for insulting or disturbing a FWC Member and s.674(2) of the Act which provides a person commits an offence for using insulting language, both offences involving a penalty of imprisonment for 12 months.

• [9] Insofar as the Notice of appeal relates to the Substantive Decision, the Substantive Order, and the Appeal Decision, there is no arguable case. The Appellant has already sought and been refused permission to appeal against the Substantive Decision and the Substantive Order, and the Act does not provide for appeal of the Appeal Decision to another Full Bench of the Commission.[7] The Appellant submitted that the current appeal raises different grounds to those dealt with in the original appeal and that the first appeal dealt with the question of whether his dismissal was consistent with the Small Business Fair Dismissal Code and not whether he was an employee. However, the Appeal Decision dealt with all the grounds of appeal, which included both the Commission's determination that the Appellant was not an employee, and the alternative finding that the dismissal was consistent with the Code. In any event, absent exceptional circumstances which have not been established, it is not open to the Appellant to make a subsequent appeal of the same decision on different grounds. In Metwally v University of Wollongong[8] the High Court said:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

• [10] In relation to the Costs Decision of 18 July 2022, the Notice of appeal was lodged with the Commission on 17 November 2022, considerably outside the 21-day timeframe prescribed by the Fair Work Commission Rules 2013.[9] Accordingly, the Appellant would need to apply for, and be granted, an extension of time for him to seek to appeal the Costs Decision. No explanation has been provided for the delay in filing the Notice of appeal, and I discern no basis upon which an extension of time would be granted. Accordingly, there is no arguable case in respect of the Costs Decision.

• [11] As to the appeal against the Second Costs Decision, the decision was confined to an assessment of the amount of costs to be awarded to Kailash Lawyers Pty Ltd. The Commissioner determined the matter on the papers based on the evidence and submissions filed by the parties. The material filed by the Respondent included invoices rendered by its representative, Employsure, in respect of the costs incurred in representing Kailash in the unfair dismissal application.

• [12] Other than repeating offensive and entirely unfounded allegations, the Appellant's submissions raised two substantive issues: that the invoices submitted by Kailash were, in fact, for another entity and should be disregarded. Secondly, that the invoices were created on dates later than appeared on their face and were bogus. Critically, Mr Patial made no submission or challenge on the basis that the invoices did not reflect the costs incurred by Kailash in responding to the unfair dismissal application.

• [13] The Commissioner dealt with both issues in the decision and was satisfied that the invoices were rendered for work undertaken by Employsure for Kailash in responding to Mr Patial's unfair dismissal application. The Commissioner, in the absence of anything relevant advanced by Mr Patial within the timeframe he was directed to file material, decided to make the order for costs in the amount sought by Kailash, being satisfied that what was claimed did not disclose unreasonableness in the work undertaken or in the costs that were invoiced.

• [14] The Appellant disagrees with the conclusions of the Commissioner and seeks to reagitate arguments that were not accepted by the Commissioner, but this does not give rise to any arguable grounds of appeal. No arguable case of error arises from the reasoning of the Commissioner. The Commissioner applied the correct legal principles, considered, and dealt with the evidence and submissions that were before her, and made findings of fact based on the evidence.

• [15] In summary, there is no material before me upon which it could be concluded that any of the grounds of appeal disclose an arguable case of error with any reasonable prospect of success on appeal, in respect of any of the decisions or orders set out in paragraph 1 of this decision.

• [16] Given my finding in relation to the grounds of appeal it is unnecessary for me to consider whether the balance of convenience weighs in favour of a stay.

• [17] The application for a stay order is dismissed.

• [18] The Order requiring Mr Patial to pay Kailash Lawyers Pty Ltd costs and disbursements in the amount of $36,398.05 plus GST, by no later than 21 days after 28 October 2022, remains in force.

[1] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2021] FWC 4167 ("Substantive Decision").

[2] PR732600.

[3] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2021] FWCFB 6055 ("Appeal Decision").

[4] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2022] FWC 1449 ("Costs Decision").

[5] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers [2022] FWC 2721 ("Second Costs Decision").

[6] PR747425.

[7] Jeremy Snyder v Helena College [2019] FWCFB 7398 at [28].

[8] (1985) 60 ALR 68 at [71].

[9] Rule 56(2) Fair Work Commission Rules 2013.

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