Rahman v Commonwealth of Australia as represented by the Australian Taxation Office

AND: COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE AUSTRALIAN TAXATION OFFICE First Respondent

JUDGE: BROMWICH J DATE OF ORDER: 22 September 2017

1. The interlocutory application filed on 13 April 2017 seeking to reopen the proceedings after judgment was reserved be dismissed.
2. The amended application for judicial review be dismissed.
3. The applicant pay the first respondent's costs of and incidental to the interlocutory application filed on 13 April 2017, the prior application for judicial review and the amended application for judicial review. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 On 8 July 2016, Deputy President Bull of the Fair Work Commission dismissed an application made by the applicant, Mr Fahmid Rahman, for an unfair dismissal remedy in relation to the termination of his employment by the Australian Taxation Office (ATO). Permission to appeal from that decision was refused by the Full Bench of the Fair Work Commission on 18 November 2016. 2 By application to this Court filed on 23 December 2016, Mr Rahman sought judicial review of the refusal by the Full Bench to grant permission to appeal from the Deputy President's decision. That application was abandoned and, by consent, replaced with an amended application. 3 After judgment had been reserved, the applicant sought, by an interlocutory application filed by leave on 13 April 2017, to re-open his case and reinstate the case that was abandoned. That interlocutory application is addressed towards the end of these reasons. 4 The respondents are the Commonwealth of Australia (as represented by the ATO) and the Fair Work Commission (who filed the usual submitting appearance save as to costs). It is convenient to refer to the Commonwealth, who is the only active contradictor, as the respondent. 5 With the benefit of pro bono counsel, whose assistance is gratefully acknowledged, the applicant sought to rely upon an amended originating application and an amended statement of claim, both dated 28 March 2017. The respondent did not object to that course. That amended application was argued on behalf of the applicant by the same pro bono counsel, who had accepted a referral by the Court. 6 The applicant sought relief under s 39B of the Judiciary Act 1903 (Cth) as follows: (1) a writ in the nature of certiorari be issued to quash the decision of the Full Bench of the Fair Work Commission on 18 November 2016 in Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2016] FWCFB 7677; and (2) a writ in the nature of mandamus be issued requiring the Fair Work Commission to determine again, according to law, the notice of appeal filed by the applicant on or about 27 July 2016, being his application for permission to appeal and notice of appeal in relation to the decision of the Deputy President in Rahman v Commonwealth of Australia as represented by the Australian Taxation Office [2016] FWC 4575. 7 The applicant's grounds, as set out in the amended statement of claim, were as follows: Duty to give reasons ground - appeal decision 2. The Second Respondent dismissed the Applicant's application for unfair dismissal on 8 July 2016 (the first instance decision). The Applicant appealed to the Full Bench of the Fair Work Commission. 3. The Second Respondent (constituted by the Full Bench) gave a decision in the appeal matter on 18 November 2016 (the appeal decision). 4. The Second Respondent concluded that there was no error of fact or law in the first instance decision, at paragraph [18]. 5. The Second Respondent did not grant permission to appeal and dismissed the appeal. 6. The Second Respondent had a duty to give reasons in the appeal decision. 7. The Second Respondent failed to give reasons after considering the two grounds of appeal that had been put forward by the Applicant on appeal. 8. The Applicant submits that the lack of reasons gives rise to the view that the submissions were not considered, or considered properly, and there is jurisdictional error.

The Full Bench's decision of 18 November 2016 8 In his application to the Full Bench, Mr Rahman addressed whether permission to appeal should be granted and identified errors of fact and law that the Deputy President was said to have made. 9 The first asserted error was that the Deputy President erred in finding that the applicant created or assisted in the creation of a false job application on or around 9 March 2011, given that the primary evidence relied upon was an erroneously sworn affidavit of the applicant of 13 February 2012 filed in the Federal Circuit Court (erroneously sworn affidavit issue). The second asserted error was that the Deputy President failed to consider the applicant's submission that the ATO's delay of several years in dealing with his alleged misconduct condoned his behaviour and therefore caused the dismissal to be unfair (condonation issue). 10 The Full Bench could not identify any arguable error of fact or law in the Deputy President's decision and was not satisfied there was any public interest in granting permission to appeal. Accordingly, it refused permission to appeal, with the formal consequence that Mr Rahman's appeal was dismissed without a hearing of the appeal on its merits.

Applicant's case and submissions 11 The applicant's case is that the Full Bench of the Fair Work Commission fell into jurisdictional error by failing to consider the submissions made by the applicant on his grounds of appeal. The failure to take Mr Rahman's submissions into account is said to be disclosed by the failure of the Full Bench to give reasons for not identifying any arguable error of fact or law in the Deputy President's decision. 12 Counsel for the applicant submitted that the Fair Work Commission had a duty to give reasons for the decision to refuse to grant permission to appeal. It was further submitted that no reasons are given in the Full Bench's decision. This was said to be evident from the concluding paragraphs of the Full Bench's decision, which were as follows: Conclusion 17. Deputy President Bull conducted a detailed forensic examination of the evidence before him. The task of the Deputy President was to determine relevant issues on the evidence and provide sufficient reasons for that determination. He did so in an orthodox manner. 18. We have considered the errors asserted by Mr Rahman. We can identify no arguable error of fact or law in Deputy President Bull's decision. 19. We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant [sic] guidance. The outcome of Mr Rahman's application was not counterintuitive. The decision at first instance does not manifest in injustice. The legal principles applied by the Deputy President followed and are harmonious with those applied in other decisions dealing with similar matters. 20. We refuse permission to appeal and dismiss the appeal. 13 The applicant submitted that the lack of specific reference in these concluding paragraphs to the two asserted appeal grounds, being the erroneously sworn affidavit issue and the condonation issue, demonstrated that the Full Bench did not grapple with the appellant's submissions in order to conclude properly whether there had been an error of fact or law. This error was said to be a jurisdictional error. 14 The applicant placed heavy reliance upon the Full Court's decision in Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [55]-[57]. It was submitted that the Full Bench in this case had committed the same error as was found to be committed by the Vice President in Soliman, which was explained in that decision as follows: Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error … 15 In making these submissions, counsel for the applicant acknowledged that, in the present case, the Full Bench gave a lengthy recitation in earlier passages of its decision of the arguments advanced by the applicant and the respondent. The applicant submitted that these recitations nonetheless demonstrate no assessment of the arguments and disclose no reasons one way or the other why the Full Bench accepted that there was no arguable error of fact or law. 16 In support of the contention that the Full Bench failed to engage with the necessary considerations, the written submissions for the applicant referred to the obligation on the Fair Work Commission to consider the public interest, as set out in s 400 of the Fair Work Act 2009 (Cth) (FW Act) as follows: 400 Appeal rights (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. 17 The applicant also referred to the decision in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [27], in which it was said that the Full Bench must make a decision on whether it is in the public interest to grant permission to appeal and take into account that: Although the public interest might 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, it seems to us that none of those elements is present in this case. 18 It was submitted that the Full Bench could only have been in a position to make the necessary public interest determination, as required by s 400(1) of the FW Act and expounded upon in GlaxoSmithKline, if it had considered the parties' submissions. 19 For these reasons, the applicant submitted that the Full Bench could not have properly come to a conclusion that permission to appeal should not be granted without fully considering the submissions of the applicant. It was submitted that the failure to do so in this case amounted to jurisdictional error, and that the decision of the Full Bench should therefore be quashed and remitted to a differently constituted Full Bench for determination according to law.

Respondent's case and submissions 20 The respondent's case is that the Full Bench's decision demonstrates proper consideration and rejection of the alleged errors raised by the applicant. The respondent submitted that the applicant's assertion that the Full Bench failed to give reasons is more properly characterised as a complaint about the adequacy of its reasons. The respondent's submissions were framed accordingly. 21 In the respondent's written submissions, it was pointed out that the content of an adequate statement of reasons for decision depends upon the statutory context in which the decision is required to be made. The respondent relied upon the following statement of principle in Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35; 229 FCR 537 at [51] and [59], where Buchanan J, with whom Allsop CJ and Siopis J agreed, said: 51. The jurisdictional limits for an administrative tribunal also depend importantly upon the specific nature of the task set for it. Thus, the particular role of the FWC on appeal must also be borne in mind when assessing whether there was jurisdictional error by the Full Bench of the FWC when it performed its own role on the appeal, bearing in mind that it is that decision which is the subject of the present application. … 59. … The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all. 22 It was also pointed out on behalf of the respondent that the Fair Work Commission exercises executive rather than judicial power and that, accordingly, its decisions should not be read with an eye keenly attuned to the perception of error, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. While that submission may be accepted as far as it goes, the Full Court has observed that more may be expected of experienced and legally qualified members of the Fair Work Commission, but that this does not mean that every submission made must be referred to: see Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; 240 IR 178 at [47]. 23 The respondent also relied upon the following statements of principle: (1) In Barach v University of New South Wales [2010] FWAFB 3307 at [16] it was said that "the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings". (2) In Transport Workers' Union of Australia v WA Freightlines Pty Ltd [2011] FWAFB 3863, the Full Bench held at [10]: "where reasons are required, and assuming reasons are given, a question may arise as to the adequacy of the reasons. Whether the reasons given are adequate will depend upon the circumstances including the nature of the statutory function being exercised, the decision and the submissions and material in the case." 24 The respondent relied upon ss 604(2) and 400(1) of the FW Act for the principle entrenched in statute that the Fair Work Commission must grant permission to appeal if satisfied that it is in the public interest to do so, and must not do so unless it is so satisfied. Based on those provisions, the respondent's arguments were as follows. First, as s 400(2) makes clear, an appeal on a question of fact, which was the nature of the applicant's appeal, must involve a "significant error of fact". It follows that the effect of s 400 on the operation of s 604 means that the threshold for permission to appeal in cases involving errors of fact is higher than that pertaining to appeals to the Full Bench of the Fair Work Commission more generally. Importantly, the public interest test in s 400(1) is not satisfied by the identification of error or preference for a different result: Robin Hansen v Calvary Health Care Adelaide Limited [2016] FWC 5223 at [36]. Accordingly, the Deputy President's decision is properly viewed as a discretionary decision to which the principles in House v The King (1936) 55 CLR 499 at 504-5 apply, subject to modification by s 400(2), limiting any review based on a mistake of fact to a significant error of fact. Necessarily, the test is discretionary and may involve a broad value judgment. 25 With the above framework established, counsel for the respondent advanced the following arguments as to the adequacy of the Full Bench's reasons. It was pointed out that both the applicant and respondent were represented by counsel in that instance. As was evident from the text of the decision, both parties relied on written submissions, segments of which were reproduced in the reasons. The two factual issues raised on behalf of the applicant in seeking permission to appeal were addressed in that manner and were clearly identified at [10]. In substance, it was submitted on behalf of the respondent that spelling out the errors of fact, spelling out the submissions made, making explicit reference to the Deputy President's decision and observing that he had conducted a detailed forensic examination of the evidence before him in an orthodox manner was the context in which it should be accepted that the conclusion expressed at [18] entailed the Full Bench considering and rejecting the alleged errors raised by the applicant. Necessarily, it was submitted that implicit in the rejection of the alleged errors raised by the applicant was a rejection of the arguments raised on his behalf. Accordingly, it was submitted that no error was disclosed in the Full Bench's decision. In support of that conclusion, it was pointed out that the applicant's reliance on Soliman was misconceived. That is because what was in issue in that case was not the adequacy of the reasons but rather a failure to address at all a submission centrally relevant to the decision being made. No such error was said to be apparent in this case.

Consideration 26 In reading the reasons of the Full Bench in their entirety and placing [18] in context, while additional cross-references might have been made, it is clear that all of the competing arguments were considered, or at least those which were salient and important (no issue to the contrary having been made in this application). There was no need for the Full Bench to do more than it did. It is clear that it considered the competing arguments and found in favour of the respondent, as it was entitled to do. The respondent's submissions as to why there was no jurisdictional error should therefore be accepted. 27 The relief sought by the applicant is discretionary. Assuming that I am wrong about the absence of jurisdictional error, a question arises as to whether it would lack utility or be futile to grant the applicant the relief he is seeking. This is because a court will not grant a writ unless satisfied that it will be effectual: R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 at 511.5. It may not be granted if, inter alia, no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, cited with approval and quoted in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [56]. 28 The point that should be made is that even if there was some error in the Deputy President's decision as asserted, the Full Bench independently came to the view that it was not satisfied that there was any public interest in granting permission to appeal. The test in GlaxoSmithKline was plainly applied. In those circumstances, even if the asserted errors had taken place (which is not accepted), it would not be appropriate to grant relief on discretionary grounds. This is because a rehearing of the matter is likely to be futile, as refusal of permission to appeal may be compelled by the conclusion, as was independently reached by the Full Bench previously, that there is no public interest in granting that permission.

Application to re-open 29 The applicant's principal basis for the application to reopen his case was that pro bono counsel who appeared on his behalf at the hearing had abandoned certain arguments which the applicant wished to pursue. In the applicant's affidavit dated 13 April 2017 and in written submissions made on his behalf by different counsel, it was suggested that timing and other practical constraints in the lead up to the hearing meant that the applicant had no choice but to accept the manner in which pro-bono counsel had framed his case. The wider case sought to be agitated was that the Full Bench failed to exercise its jurisdiction in two ways: (1) a failure to exercise jurisdiction by purporting to hear the entire appeal when the matter was listed only for the hearing of the question as to whether the applicant should be given permission to appeal; and (2) a failure to exercise jurisdiction by determining, without disclosing proper reasons, that there was "no arguable error" in the decision of the Deputy President in circumstances where the matters relied upon were said to represent "a clear and … unanswerable error". 30 Those points were developed somewhat further, but not in a way that added much to the two points above, and by reference to the applicant effectively asserting that he felt unable to resist his prior case being reframed with the above points being abandoned. That assertion was only slightly developed in the applicant's affidavit and in written submissions made on his behalf. 31 In opposing the application to reopen the hearing, the respondent helpfully cited the applicable principles as stated by McHugh J in Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at [29] and by the Full Court in Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9; 190 FCR 437 at [6]. The respondent also relied upon the comments of Gilmour J in Featherby v Commissioner of Taxation [2016] FCA 454 at [19] and [25]; and of Collier J in Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816 at [16]. 32 In Bolton, Collier J made reference to: (1) the case management principles stated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [29]-[30], [92] and [94]-[95], and in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 at [51]-[52]; and (2) the imperatives of s 37M of the Federal Court of Australia Act 1976 (Cth) as to the timely and efficient disposition of the Court's business and the impact on the Court's resources if leave were granted and the Court were required to reopen proceedings, as all militating against the grant of leave. 33 The respondent submitted that the applicant's interlocutory application to reopen his case fell well short of establishing any circumstances which were sufficiently exceptional to warrant the reopening of the hearing in this matter. First and foremost, the respondent pointed out that the arguments now sought to be run were those abandoned in late March 2017 before the hearing on 5 April 2017, on the basis of legal advice provided by pro bono counsel, whose assistance was arranged for the applicant pursuant to a referral by the Court. It was pointed out that the applicant's own evidence reveals that he knew from at least about 28 March 2017 that his counsel for the hearing on 5 April 2017 proposed to abandon those arguments. Notwithstanding this knowledge, the applicant gave no evidence about what, if anything, he sought to do in that period to ensure that his counsel for the hearing ran the arguments contained in his original process. 34 Similarly, it was pointed out on behalf of the respondent that the applicant gave no evidence of what, if any, discussions he had with his counsel between the time that the pro bono referral was accepted on 3 March 2017 and the filing of submissions by pro bono counsel on 28 March 2017. The respondent submitted that the pro bono counsel who appeared was competent and experienced and that there would be relevant prejudice, at least by way of needless expense, if the hearing was reopened. That is especially so because the arguments now proposed to be advanced could easily have been accommodated in the hearing which took place on 5 April 2017. Reopening the hearing would further delay finalisation of the proceedings. 35 It was submitted on behalf of the respondent that the circumstances outlined above and elaborated further in the respondent's submissions and in the applicant's submissions and evidence were not exceptional in the requisite sense. Rather, when regard is had to s 37M of the Federal Court of Australia Act, those circumstances would tell against the Court exercising its discretion to reopen the hearing. 36 The respondent also argued that, contrary to the submissions for the applicant in support of his application to reopen his case, the applicant's new arguments had extremely low prospects of success. Although framed in terms suggesting a failure or constructive failure on the part of the Full Bench to exercise jurisdiction, the substance was concerned with the merits of the decisions of the Deputy President and of the Full Bench. The grounds did not raise jurisdictional error, and reflect instead the applicant's dissatisfaction with those decisions. It was submitted that this Court ought decline to exercise its discretion to grant the relief by way of reopening the case in such circumstances, citing Toms v Harbour City Ferries Pty Limited and Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149. 37 The submissions for the respondent should be accepted, save those as to prejudice, which would not of itself be sufficient reason to refuse leave to reopen if otherwise meritorious in all the circumstances of this case. The submissions for the applicant should be rejected. The basis for that rejection is threefold. First, the circumstances by which the application to reopen is sought are not exceptional. Secondly, there is no proper reason to depart from the principle that a party to litigation should be bound by the conduct of his or her legal representatives. Thirdly, and perhaps most importantly in this case, the additional grounds and arguments sought to be advanced have not been shown to be other than utterly devoid of merit. There is no proper basis for arguing for the errors that are asserted, either factual, legal or jurisdictional. There is also no proper basis to conclude that the Full Bench was doing more than was stated, namely hearing the application for permission to appeal. 38 The fact that the determination of that application by the Full Bench did, to some extent, as outlined above, delve into the merits of the case in order to properly assess whether permission should be granted did not make that a full hearing and determination of an appeal. The asserted errors of fact are also baseless upon a fair reading of the decision of the Deputy President and the decision of the Full Bench. 39 For completeness, I should make clear that the case advanced on behalf of the applicant at the hearing was the best available to him. The fact that it did not succeed does not deny the fact that it was competently argued. The fault lay with the case itself, and not with the way in which it was presented. The additional case that the applicant sought to advance was, to be entirely blunt, completely hopeless. He was well advised to abandon it and run only the best case that he had. The same cannot be said of the attempt to reverse that abandonment. 40 It follows that leave to the applicant to reopen his case should be refused with costs.

Conclusion 41 The amended originating application for judicial review must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.