Federal Court of Australia

Pal v Commonwealth of Australia [2020] FCA 1483

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Originating Application and Statement of Claim be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.    The First Respondent be given leave to make an application for costs within 28 days, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

3.    The Applicant respond to any application for costs within 21 days of service of the First Respondent’s written submissions for costs and any supporting affidavit, or such further time as may be allowed, by way of written submissions of no more than five pages in length and any supporting affidavit.

4.    Any application for costs be determined on the papers, unless it is decided that an oral hearing is required.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    This is an application by the Commonwealth for, among other things, summary judgment in relation to this proceeding. For the reasons which follow, even after making assumptions which are favourable to the Applicant, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting this proceeding. The Applicant’s Originating Application and Statement of Claim will be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

PROCEDURAL BACKGROUND

2    On 15 April 2020, the Applicant filed an Originating Application under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking declaratory and compensatory relief, on the basis of the grounds identified in an accompanying Statement of Claim.

3    On 23 June 2020, the Commonwealth filed an interlocutory application under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and/or r 26.01(1) of the Federal Court Rules 2011 (Cth) (Rules) seeking summary dismissal of the Originating Application and the Statement of Claim on the grounds that there is no reasonable prospect of success in the Applicant prosecuting his proceedings for the following reasons:

(1)    the relief sought by the Applicant under s 39B(1A)(c) of the Judiciary Act is not capable of being granted by this Court properly exercising its ‘supervisory’ judicial review jurisdiction of decisions of the Fair Work Commission. Alternatively, the declarations sought by the Applicant would have no utility in the circumstances as the decisions made by the Fair Work Commission would remain legally extant;

(2)    as to the decision of the Full Bench of the Fair Work Commission dated 28 February 2020 (Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606)), no ground of jurisdictional error, or error of law on the face of the record (together, ‘errors of law’), is properly identified in the Applicant’s Statement of Claim;

(3)    as to the decision of the Fair Work Commission (Clancy DP) dated 21 August 2019 (Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2019] FWC 5821), no errors of law are properly identified in the Applicant’s Statement of Claim;

(4)    in the alternative, under r 16.21(e) of the Rules, the Commonwealth seeks to strike out the whole of the Statement of Claim filed on 22 April 2020 on the basis that it fails to disclose a reasonable cause of action.

4    The Commonwealth also seeks an order that the Applicant pay the costs of, and incidental to, the Commonwealth’s interlocutory application on the grounds that the proceedings were instituted by the Applicant “without reasonable cause” (within the meaning of s 570(2)(a) of the Fair Work Act 2009 (Cth) (Fair Work Act)).

5    In support of its interlocutory application, the Commonwealth relies upon the affidavit of Peter McNutly sworn on 19 June 2020 (McNulty Affidavit). Mr McNulty is the solicitor with the principal carriage of these proceedings in this Court for and on behalf of the Commonwealth, and he appeared for and on behalf of the Commonwealth in the proceedings brought by the Applicant against the Commonwealth in the Fair Work Commission.

6    On 25 June 2020, I made orders that the parties file written submissions and that the Fair Work Commission be joined as a party to the proceeding and known as the Second Respondent, and that the Commonwealth be known as the First Respondent.

7    On 9 July 2020, the Commonwealth filed its written submissions.

8    On 17 August 2020, the Applicant, who is self-represented, sent to my Chambers his written submissions in opposition to the Commonwealth’s interlocutory application. It appears those submissions were not filed by the Applicant. It is possible they are not in the correct form and may not be accepted by the Federal Court’s Registry. In order to avoid unnecessary technicality, and so that the Applicant’s submissions can be considered, I permitted those submissions to be tendered at the hearing of this matter on 8 October 2020 and they were marked as Exhibit A-1.

9    At the hearing of the Commonwealth’s interlocutory application on 8 October 2020, the Applicant indicated that he intended to provide to my Chambers further written submissions. I permitted the Applicant to do that and directed that, if any such submissions were provided, they would become Exhibit A-2. The Commonwealth was granted leave to file any submissions responding to those further written submissions of the Applicant.

10    The Applicant provided further submissions to my Chambers on 8 October 2020, and subsequently sent further documents to my Chambers on 8, 10 and 14 October 2020 (which were referred to as “affidavits”). I have considered these documents and will refer to them as Exhibit A-2. On 15 October 2020, the Commonwealth filed short reply submissions in respect of Exhibit A-2.

11    Notwithstanding that they were not filed, I have treated Exhibit A-1 and Exhibit A-2 as the Applicant’s written submissions in response to the Commonwealth’s interlocutory application.

Factual Background

12    One of the documents exhibited to the McNulty Affidavit was a “Deed of Standing Offer” between the Commonwealth of Australia (as represented by the Department of Immigration and Border Protection) and the Applicant. It appears to have been executed in May 2015. It is apparent from that document that the Applicant supplied to the Department “interpreting and translating services”.

13    On 28 February 2019, the Applicant commenced proceedings against the Commonwealth in the Commission seeking a remedy under Part 3-2 of the Fair Work Act on the grounds that he claimed to have been unfairly dismissed from employment with the Department of Home Affairs (Department).

14    On 17 June 2019, the Applicant and the Department appeared at a hearing before the Fair Work Commission (as constituted by Deputy President Clancy).

The Fair Work Commission’s decision

15    On 21 August 2019, Deputy President Clancy ordered that the Applicant's application under Part 3-2 of the Fair Work Act be dismissed for want of jurisdiction. The Commission accepted the Commonwealth's submission that the Applicant was not an employee of the Department. Deputy President Clancy's reasons for decision were published as Pal v Commonwealth of Australia represented by the Department of Home Affairs [2019] FWC 5821.

16    Deputy President Clancy concluded at [34]-[35]:

Mr Pal submits the [contractual arrangement between the Applicant and the Department (Deed of Standing Offer)] does not have the effect of establishing he was an independent contractor. Essentially, his case is that the Department cannot rely on the text of the Deed of Standing Offer because he did not initial each of its pages and nor was it attached to any of the Notices purporting to extend it and further, that the Commission should look beyond its text. Mr Pal’s case that he was an employee is based on his submissions pertaining to the nature of his work, the manner in which it was performed and the various characteristics of the relationship he had with the Department.

Applying the principle from Director-General of Education v Suttling [(1987) 162 CLR 427 at page 437], for there to have been an engagement by the Department of Mr Pal as an employee, it had to have been consistent with s.6 of the [Public Service Act 1999 (Cth) (PS Act)]. Section 6 provides that all persons engaged on behalf of the Commonwealth must be engaged either under the PS Act or under the authority of another Act. As far as the PS Act is concerned, there is nothing to suggest Mr Pal was an employee engaged by an Agency Head, on behalf of the Commonwealth, pursuant to s.22. Further, there is nothing before me to suggest the Department had authority under another Act to engage Mr Pal as an employee. In short, there was no evidence of Mr Pal having been engaged as an employee of the Commonwealth pursuant to a written contract of employment coming within the scope of s.6 of the PS Act. I am therefore satisfied that in this case, the Department did not exercise the statutory power of engagement pursuant to s.6 of the PS Act and note that Mr Pal acknowledged he does not have a document from the Commonwealth that describes him as an employee …

17    Deputy President Clancy continued at [36]-[39]:

Noting that s.6(3) of the PS Act also empowers the Department to engage persons as independent contractors, I am satisfied, having reviewed the terms of the Deed of Standing Offer, that this is what occurred in Mr Pal’s case despite his assertions to the contrary. The Deed of Standing Offer stated in express terms that the relationship between Mr Pal and the Commonwealth (through the Department) was not one of employment. Additionally, in executing the Deed of Standing Offer, Mr Pal specifically acknowledged that he was a Service Provider and not an employee. Further, Mr Pal agreed to the Department having the right to extend the Deed of Standing Offer at its discretion. I am satisfied that Mr Pal agreed to be bound by the terms of the Deed of Standing Offer, having signed it in the presence of a witness on 11 May 2015, and the Department’s right to extend it was validly exercised … Despite Mr Pal’s assertions, the Deed of Standing Offer did not require the parties to initial each of its pages and nor was there a requirement for it to be attached to any Notice of extension.

I do not accept the proposition advanced by Mr Pal that the way in which the Deed of Standing Offer operated in practice made him an employee. Recognising in this case the Commonwealth does not concede that Mr Pal was an employee at common law, the following passage from Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth [[2005] FCAFC 204; 145 FCR 277 at [42]] is nonetheless apposite:

“The fact that subsequent “operational” factors such as the method of work and performance would have the hypothetical effect at common law that Mr Arends was an employee does not mean that he was in employment by authority of a law of the Commonwealth, particularly in circumstances where the instrument under which the contract was made was specific in stating that the contract did not effect employment.  His own belief as to his status is not relevant.”

Consistent with the conclusion of the Full Court in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth, having concluded that there is no evidence that Mr Pal was engaged as an employee either under the PS Act or the authority of another Act, and that he was instead engaged under a contract which specifically stated the relationship between him and the Department was not one of employment, it is not necessary for me to assess whether the terms of the Deed of Standing Offer did or did not meet the common law indicia of an employment relationship.

As such, having been persuaded Mr Pal was not engaged as an employee under the PS Act, Mr Pal cannot have been an employee of the Department and therefore does not come within the definition of a national system employee. This being the case, Mr Pal was not an employee to whom Part 3-2 of Chapter 3 of the Act applies and was therefore not a person protected from unfair dismissal.

(Emphasis in the original.)

18    Deputy President Clancy then concluded at [40]-[42]:

It is noted that much of Mr Pal’s material and submissions addressed what he considered to be the merits of his application. However, s.396 of the Act requires me to decide whether Mr Pal was protected from unfair dismissal before considering the merits of his application. Having determined Mr Pal was not a person protected from unfair dismissal, the Commission does not have jurisdiction to deal with his unfair dismissal application.

Having made this finding, it is therefore not necessary for me to proceed to consider the merits of Mr Pal’s unfair dismissal application and, in particular, his submissions that the circumstances of his resignation were such that he was ‘dismissed’ within the meaning of s.386 of the Act. The consequence of my finding is that Mr Pal’s unfair dismissal application must be dismissed.

Mr Pal’s unfair dismissal application must be dismissed because he was not a person protected from unfair dismissal. An order to this effect will be issued shortly.

The Full Bench’s decision

19    On 8 September 2019, the Applicant lodged an application to the Full Bench of the Commission (Full Bench) seeking permission to appeal against the decision of Deputy President Clancy.

20    On 12 November 2019, the Applicant appeared at a hearing before the Full Bench (as constituted by Vice President Hatcher, Deputy President Bull and Commissioner Booth).

21    On 28 February 2020, the Full Bench published its reasons for concluding that it was not in the public interest to grant permission to appeal, thereby refusing such permission under s 400(1) of the Fair Work Act. The Full Bench's reasons for decision were published as Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFC 606.

22    The Full Bench stated at [16]:

In this matter we are not satisfied that the grant of permission to appeal would be in the public interest because we do not consider that the document appended to Mr Pal’s notice of appeal (which constitutes the only material before us which articulates the basis of the appeal) discloses any reasonably arguable case of appealable error. The matters raised in that document, which we have attempted to summarise above, may be grouped into two categories: matters 1, 2, 3, 8, 9 and 10 may be characterised as complaints by Mr Pal that he was not afforded procedural fairness, while matters 4, 5, 6, 7, 11 and 12 pertain to the Deputy President’s substantive finding that Mr Pal was not an employee for the purpose of Pt 3-2 of the [Fair Work Act] and thus was not a person protected from unfair dismissal.

23    In relation to procedural matters, the Full Bench stated at [17]:

… we have perused the record of proceedings before the Deputy President, including the transcript of the hearing conducted on 17 June 2019. We cannot identify any arguable instance of procedural unfairness, as alleged by Mr Pal. The hearing was to a degree conducted in an inquisitorial fashion, but it is apparent that this was necessary because of Mr Pal’s understandable lack of knowledge concerning both legal and substantive matters. Mr Pal was not prevented from cross-examining any witness or improperly restricted in doing so. The only witness called by the Commonwealth was Ms Rhodora Masri, the Manager Interpreter Liaison, Translating and Interpreting Service in the Department. Mr Pal cross-examined her for a relatively short period, and the cross-examination ended when Mr Pal indicated that he had finished. The Deputy President intervened in the cross-examination only for the purpose of ensuring that Mr Pal confined himself to asking questions rather than arguing with the witness. Mr Pal gave evidence, and because he was self-represented it necessarily fell to the Deputy President to examine him. Mr Pal made an oral submission after the completion of the evidence, which to a significant degree diverted into the merits of his case or extraneous matters. Mr Pal’s submission ended when he stated that he was finished, and at no point during the hearing did he indicate that he had insufficient time to say what he wanted to say, nor did he ask to be given more time. As recounted earlier, Mr Pal requested an opportunity to make a further submission after the hearing ended, and he was afforded that opportunity. The procedural matters raised by Mr Pal simply have no substance.

24    The Full Bench continued at [18]-[19]:

As to the substantive matters, we have earlier set out in full the Deputy President’s reasons for his conclusion that Mr Pal was not an employee. The first proposition stated in the decision was that there was no basis to conclude that Mr Pal was employed by the Department on behalf of the Commonwealth in exercise of the power contained in s 22 of the [Public Service Act 1999 (Cth) (PS Act)] or that the Department had the power to engage Mr Pal under any other Act. The correctness of this proposition was not in terms challenged by Mr Pal, and in any event it is indubitably correct. The terms of the [Deed under which Mr Pal was engaged (Deed)] contradict any notion that the Department had an intention to engage Mr Pal as an employee pursuant to s 22 of the PS Act. That being the case, the relevant effect of s 6(1) of the PS Act was that there was no lawful basis upon which Mr Pal could be an employee of the Commonwealth.

The proposition that, notwithstanding the terms of the PS Act, a worker who is engaged by the Commonwealth on a basis which is consistent with the incidents of an employment relationship at common law may be an employee within the meaning of Pt 3-2 of the [Fair Work Act] has a degree of superficial attraction. However, as stated in the decision, that proposition was effectively disposed of in the Federal Court Full Court decision in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth [[2005] FCAFC 204, 145 FCR 277, 145 IR 418] in the passage from that decision quoted by the Deputy President. To this might be added the following statement concerning public service employment made by Brennan J (with whom Mason ACJ and Deane J agreed) in Director-General of Education v Suttling [[1987] HCA 3, 162 CLR 427 at 437-438]:

“If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.) [1951] HCA 50; (1951) 83 CLR 521, at p 527.”

25    The Full Bench then concluded at [21]-[21]:

The matters raised by Mr Pal concerning the Deputy President’s conclusion that he was not an employee are incapable of altering the legal position as we have described it. There is no utility in considering them further.

Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the [Fair Work Act].

OVERVIEW OF THE Proceeding commenced by the applicant

26    In his Originating Application, the Applicant seeks the following relief:

1.     A declaration that the Applicant is not an Independent Contractor of the Department of Home Affairs, Commonwealth of Australia

2.     A declaration that the Applicant has been working for the Department of Home Affairs under the correct classification of Labour Hire Employee, and is therefore covered under National Employment Standards which entitle him to workplace entitlements.

3.     Adequate financial compensation for loss of benefits since 1991[.]

27    The Originating Application is brought in this Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act. That provision provides that “[t]he original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”.

The Parties’ submissions

The Commonwealth’s submissions on the jurisdiction invoked by the Applicant

28    The Commonwealth contends that, on a fair reading of the Statement of Claim, what the Applicant seeks to do is to engage this Court's supervisory jurisdiction as to the legality of the decisions of both Deputy President Clancy and the Full Bench of the Commission. On that basis, the Commonwealth (in its interlocutory application ([1(a)])) takes issue with the relief the Applicant seeks.

29    The Commonwealth contends that the declaratory and compensatory relief sought in the Originating Application should not be granted having regard to the limits of this Court’s supervisory jurisdiction. The Commonwealth contends that to grant such remedies in this Court’s supervisory jurisdiction as are sought by the Applicant would be to overstep the boundaries of judicial power and to impermissibly exercise powers that have been reposed by Parliament under the Fair Work Act in the Commission: that is, to interfere with the factual merits of each decision taken by Deputy President Clancy and the Full Bench.

30    The Commonwealth alternatively submits, in relation to the declaratory relief sought, that it is entirely unclear what utility would be served by the making of such declarations, particularly in circumstances where the decisions of the Commission were not otherwise set aside. If there is no utility in the grant of such declarations, the Commonwealth submits that the Court should not entertain the possibility of making them.

31    The Commonwealth further submits that, if remedies are to be granted by this Court exercising its supervisory jurisdiction, it should be those remedies that control and correct the unlawful exercise of power of the Executive body in question, which, the Commonwealth contends, is the decision of the Full Bench and not the decision of Deputy President Clancy. The Commonwealth submits such relief will only be granted if jurisdictional error, or error of law on the face of the record, is established and no discretionary considerations otherwise arise which properly justify the refusal to grant such relief.

32    The Commonwealth does not take issue with the Court's jurisdiction per se, as the Court's supervisory jurisdiction is engaged either under s 39B(1A)(c) or under s 39B(1) of the Judiciary Act. This Court also has jurisdiction under s 562 of the Fair Work Act.

The Commonwealth’s submissions on summary dismissal

33    The Commonwealth submits that, under s 31A(2) of the Federal Court Act, this Court may give judgment for the Commonwealth against the Applicant in relation to the whole or any part of the proceeding which has been brought against if it is satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. For the purposes of s 31A(2), the proceeding or part of a proceeding need not be hopeless, or bound to fail, for it to have no reasonable prospects of success: Federal Court Act, s 31A(3). Similarly, this Court is empowered under the Rules to make an order that judgment be given for the Commonwealth against the Applicant because the Applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding: r 26.01(1)(a). While these sources of power clearly overlap, the power to order judgment under s 31A(2) is considered to be “wider” than the power to dismiss under r 26.01(1)(a): Cook v Australian Postal Corporation [2017] FCA 509 at [17].

34    The Commonwealth contends that this Court’s power to summarily dismiss the Originating Application and Statement of Claim is to be exercised by reference to the principles as outlined in Spencer v The Commonwealth (2010) 241 CLR 118, as were usefully identified by Katzmann J in Cook v Australian Postal Corporation [2017] FCA 509 (Cook) at [18] to [28]. In this context, the Commonwealth submits that the essential question for this Court is whether it can be satisfied that there is “no reasonable prospect that the [Applicant] will be able to establish that [the Full Bench] fell into jurisdictional error or that there is an error of law on the face of the record”: Cook, [29]. The Commonwealth accepts that the Court would, of course, not lightly exercise its power to summarily dismiss the case brought by the Applicant against the Commonwealth unless it is satisfied that it is appropriate to do so having regard to that essential question.

35    The Commonwealth contends that the Statement of Claim discloses no reasonable prospect of the Applicant being able to establish that the Full Bench fell into jurisdictional error or that there is an error of law on the face of the record.

36    The Commonwealth submits that, in the context of judicial review of a decision of the Full Bench, the concept of jurisdictional error is strictly confined: this Court must assess whether the Full Bench has misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question it was required to answer, or misunderstood the nature of the opinion it was to form: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 208 - 209 [31] (Gleeson CJ, Gaudron & Hayne JJ); Cook v Australian Postal Corporation [2017] FCA 509 at [61] (Katzmann J); Mwango v Fair Work Commission [2019] FCA 1274 at (45] (Thawley J); Menzies v Fair Work Commission [2020] FCA 36; 293 IR 301, [27] (Katzmann J).

37    The Commonwealth submits that a failure on the part of the Full Bench to properly accord procedural fairness would also constitute jurisdictional error. However, the Commonwealth submits that the mere failure of the Full Bench to detect error on the part of Deputy President Clancy is insufficient to establish jurisdictional error: Cook at [62] (Katzmann J); Mwango v Fair Work Commission [2019] FCA 1274 at [41] & [45] (Thawley J); Menzies v Fair Work Commission (2020) 293 lR 301,309 [28] (Katzmann J).

38    The Commonwealth submits that the principal statutory function of the Full Bench was precisely as it identified at [12] – [15] of its reasons: the Full Bench had to form the state of satisfaction as to whether or not it was in the public interest to grant the Applicant permission to appeal from the decision of Deputy President Clancy: s 400(1) of the Fair Work Act. The Commonwealth contends that the Full Bench properly identified the principles applicable to the exercise of its principal statutory function as set out at [1]-[15] of its reasons.

39    The Commonwealth has in its interlocutory application at [1(b)] identified four categories of asserted legal error in the Statement of Claim. The Commonwealth principally contends that none of the four categories of asserted legal error in the Applicant’s Statement of Claim constitute jurisdictional error. I consider these categories further below in the assessment of the Applicant’s Statement of Claim.

The Applicant’s general submissions opposing the Commonwealth’s interlocutory application

40    As stated above, the Applicant has provided to Chambers written submissions, being Exhibit A-1 and Exhibit A-2. These submissions set out in detail the basis of the Applicant’s claim and seek to expand upon the claims made in the Applicant’s Statement of Claim.

41    In broad terms, the Applicant’s submissions in Exhibit A-1 were as follows:

(1)    The Applicant submits that “[t]he [C]ommonwealth knew the truth from the first day of [the Applicant’s] engagement in 1991 that in reality it was engaging [the Applicant] as a labour hire employee”. The Applicant submits that the Commonwealth “deliberately misled and deceptively misclassified [the Applicant] as an Independent contractor to deny [the Applicant his] legitimate entitlements and a career path”. The Applicant submits that this is the very definition of “sham contracting”.

(2)    The Applicant’s submissions set out the “key deciding factors” as to whether a person is an employee or an independent contractor. The Applicant submits that the “FWC” (which I take to mean the Fair Work Commission) “gave little weight to the fact there was [no] independent contractor agreement” between the Applicant and the Commonwealth. The Applicant submits that no aspect of his role had “a single feature of independent contracting”.

(3)    The Applicant’s submissions contended that the Fair Work Commission, or the Full Bench of the Fair Work Commission (it is not clear which), “were unable to substantiate any of their irrational findings with facts and material evidence”. The Applicant says he provided “uncontradicted evidence” that he was an employee (and not an independent contractor) and the Commonwealth “provided zero evidence”.

(4)    The Applicant identified 17 matters which the Applicant submits show, “on an infinitely favourable balance of probability”, that the Applicant was not an independent contractor because, in the Applicant’s submission, he had no control over his role.

(5)    The Applicant submits that he asked Deputy President Clancy, in the Fair Work Commission, whether Clancy DP had read ACE Insurance Limited v Trifunovski [2013] FCAFC 3; 209 FCR 146 (ACE Insurance). The Applicant submits that Clancy DP responded to that question with an “emphatic ‘no’ …”, which, in the Applicant’s submission, “reinforced” the indication that Clancy DP “was not interested in knowing or even mentioning anything that was” against the Commonwealth. The Applicant submits that Clancy DP referred to “numerous irrelevant laws and rulings” in the Deputy President’s decision, but “deliberately evaded” referring to ACE insurance.

(6)    The Applicant submits that the Applicant raised, during the Fair Work Commission hearing, the “question of the [D]epartment’s staff structure”. The Applicant submits that the Commonwealth did not provide any detail in response to that question about the Department’s staff structure or, it appears, the approximate number of persons employed by the Department. The Applicant submits that Clancy DP “was bound to seek a detailed response” in relation to this question, but did not do so. The Applicant submits that, had Clancy DP conducted that enquiry, then the Applicant would have been found to be an employee of the Department.

(7)    Parts of the Applicant’s submissions indicated that the Applicant submits, in substance, that Clancy DP’s decision was unsupported or unsupportable by any adequate factual foundation. A number of the Applicant’s submissions can be fairly characterised as recapitulating that submission.

(8)    The Applicant submits that the Deputy President was “intent on deciding that [the Applicant] was an independent contractor”, “without citing a single feature of independent contracting pointed out in [the Applicant’s] real role and listed on [the Fair Work Commission’s] very own websites”. The Applicant submits that, as a result, Deputy President Clancy was biased.

(9)    Parts of the Applicant’s submissions contended that the High Court’s reasoning in Pell v The Queen [2020] HCA 12; 94 ALJR 394 (Pell) showed how “no error is insignificant, unarguable and unappealable” and “it can make the difference between conviction and acquittal”.

(10)    The Applicant submits that Deputy President Clancy “took directions” from the Commonwealth as to how certain witnesses were cross-examined. The implication of this submission appeared to be that Deputy President Clancy had acted improperly or was biased.

(11)    The Applicant submits that the Full Bench of the Fair Work Commission did not allow the Applicant to demonstrate a “live” call of an example interpretation, which, in the Applicant’s submission, would have showed that the Applicant was an employee of the Department. The Applicant says the refusal to allow this “live call” was a “significant jurisdictional error”.

(12)    The Applicant submits Deputy President Clancy declined the Applicant’s request to use a whiteboard during the course of the hearing before the Fair Work Commission, and that this constituted procedural unfairness.

(13)    The Applicant made several submissions concerning alleged improprieties by Deputy President Clancy in the conduct of the Fair Work Commission hearing. The Applicant submits that these matters constituted procedural unfairness.

42    The Applicant made further submissions in Exhibit A-2. Exhibit A-2 states that it is a “true and accurate copy of [the Applicant’s] incomplete” submissions made at the hearing of the Commonwealth’s interlocutory application on 8 October 2020. Exhibit A-2 contains the following submissions:

(1)    The Applicant submits that the Commonwealth’s submissions at the hearing of the Commonwealth’s interlocutory application were “totally irrelevant” because the Commonwealth’s submissions did not focus on the Fair Work Commission’s “evasion of relevant evidence and reliance on irrelevant evidence”.

(2)    The Applicant submits that, at the Full Bench’s hearing, the Applicant requested that a “live interpreting call” (ie a call which would show the Applicant’s role as an interpreter) be conducted as it was the Applicant’s “most crucial evidence on independent contracting”, but the Full Bench declined that request. The Applicant submits this “live interpreting call” was not fresh evidence. The Applicant submits that the Full Bench’s failure to allow the Applicant to conduct a “live interpreting call” during the Full Bench hearing constituted bias by the Full Bench of the Fair Work Commission.

(3)    The Applicant set out the process of conducting a telephone call as an interpreter. The Applicant essentially submits that, when regard is had to the process of such a call, it was not reasonably open to find that the Applicant was not an employee of the Department.

(4)    The Applicant submits that, when regard is had to the Applicant’s pay and mode of payment, and the tools the Applicant used in performing the role of an interpreter, the Applicant’s work did “not have a single salient feature of independent contracting”. The Applicant submits that, because of the Fair Work Commission Full Bench’s “deep bias and prejudice”, the Full Bench did not accept these facts, which the Applicant submits were “uncontradicted”.

(5)    The Applicant submits that the High Court’s reasoning in Pell ensured “every fact [is] appealable, arguable, significant and winnable”. The implication appeared to be that the Fair Work Commission or the Full Bench of the Fair Work Commission’s factual findings were erroneous and the Commonwealth’s interlocutory application should fail on that basis.

(6)    The Applicant’s submissions reiterated that the Full Bench of the Fair Work Commission “deliberately and unfairly evaded [the Applicant’s] entire[ly] uncontradicted relevant evidence which was 100% strong on the scale of balance of probabilities and relied on [the] [D]epartment’s zero evidence on independent contracting”. The Applicant submits that the Full Bench committed “innumerable jurisdictional errors by evading [the Applicant’s] evidence”.

(7)    Certain of the Applicant’s submissions were directed towards alleged unfairness in the Department’s treatment of the Applicant.

(8)    The Applicant submits that “[i]t was mandatory for Deputy President Clancy to obtain and test all” aspects of several allegations, or evidence relating to those allegations, set out in Exhibit A-2. The Applicant submitted that this amounted to “multiple serious errors of law” and a “breach of natural justice”.

(9)    The Applicant reiterated his submission that Deputy President Clancy’s conduct of the hearing in the Fair Work Commission was, in the Applicant’s submission, seriously improper. At one point, the Applicant’s submissions went so far as to say that a “shameful and disgusting conspiracy by the [D]epartment and the [Fair Work Commission] flowed throughout the [Applicant’s] pr[o]ceedings” in the Fair Work Commission.

(10)    The Applicant submitted that this Court should “obtain and refer” to certain “crucial records and documents”. The implication was that, if this Court did that, the Commonwealth’s interlocutory application should be dismissed.

CONSIderation

The test for summary judgment

43    Sections 31A(2) and (3) of the Federal Court Act provide:

31A        Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

44    Rule 26.01(1)(a) of the Rules provides that “[a] party may apply to the Court for an order that judgment be given against another party because … the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding”.

45    In Spencer v The Commonwealth (2010) 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ stated (at [51]-[52] and [60]) in relation to ss 31A(2), (3) and (4) of the Federal Court Act:

First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.

Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail” … [T]he combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

…

… [F]ull weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

46    In these circumstances, it is necessary to assess the Applicant’s Statement of Claim and consider whether the requisite state of satisfaction can be reached on the question of whether the Applicant “has no reasonable prospect of successfully prosecuting the [Applicant’s] proceeding in this Court”.

47    It is to that task that I now turn. In doing so, I note that, in referring to the parts of the Applicant’s Statement of Claim, I will refer to both the page number and, where applicable, a paragraph number on that page, because the paragraph numbering of the Applicant’s Statement of Claim was not sequential.

The nature of the Applicant’s Statement of Claim

48    Having reviewed the Applicant’s Statement of Claim in detail, I am satisfied that it can be fairly characterised as seeking judicial review of the Full Bench’s decision.

49    Page 3 of the Statement of Claim sets out a “Summary” of the Applicant’s “Statement of Claims”. That summary provides as follows:

The Applicant applies to the Court for a jurisdictional review under Judiciary Act 1903, s39B (1A) (c) of the honourable Full Bench of Fairworks [sic] Commission’s decision memo C2019/5608, on his application for permission to appeal in the matter Sarabjeet Pal vs Commonwealth Of Australia, represented by the Department Of Home Affairs; relating to his work as an interpreter for (TIS National), Department of Home Affairs, Commonwealth of Australia. The Applicant provided evidence, and references to the relevant legal framework, to prove beyond any doubt, not just reasonable doubt, that he was not hired as an Independent Contractor and his real role (work) does not in any way meet the definition of an Independent Contractor. He should be correctly classified as a Labour Hire Employee.

50    In light of this statement, it can fairly be said that the Applicant’s Statement of Claim expressly seeks review of the decision of the Full Bench of the Fair Work Commission in Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606.

51    It is also apparent that the Applicant’s claims, fairly read, fall into the category of administrative law and, in particular, “judicial supervision of executive and administrative action”: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 (Dafallah) at [51].

52    In addition, the fact that the Full Bench has reviewed the decision of Deputy President Clancy cannot be ignored. As Mortimer J stated in Dafallah at [54]:

… [In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (Abigroup),] Katzmann and Rangiah JJ made it clear they would not grant the relief sought under s 39B of the Judiciary Act unless they were satisfied the decision of the Full Bench was affected by jurisdictional error. Unless it was, their Honours reasoned, “it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative” … One might add to that the proposition that it is not in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the [Fair Work Act], by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this Court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error then move to see if any error thus identified had been properly addressed by the Full Bench …

(Emphasis added.)

53    I respectfully agree with this statement by Mortimer J. Certain matters follow as a consequence. In particular, consistently with the express terms of the Applicant’s Statement of Claim, for the Applicant to succeed, it is the Full Bench’s decision which must first be shown to be affected by jurisdictional error.

The nature of judicial review

54    In addition, given the Applicant, in substance, seeks judicial review of the Full Bench’s decision, it is imperative that the Applicant appreciates the nature of judicial review.

55    When conducting judicial review, the Court does not engage in “merits review”: Menzies v Fair Work Commission [2020] FCA 36; 293 IR 301 (Menzies) at [27] (per Katzmann J). As Katzmann J stated there:

A person who is aggrieved by a decision of the [Fair Work] Commission has no right of appeal to this Court. Nor is it a merits review. Rather, it is a judicial review. In such a review, no matter what the Court may think of the decision under review, it cannot inquire into the merits. The jurisdiction of the Court is a limited one, conferred by s 562, read with s 563, of the [Fair Work Act] and also by s 39B of the Judiciary Act 1903 (Cth). In the absence of error of law on the face of the record, the Court may only grant relief for jurisdictional error, and the onus is on the applicant to establish that the decision under challenge is affected by jurisdictional error

56    The distinction between judicial review and merits review should be briefly noted. By way of brief overview, this Court’s role was reviewing the Full Bench’s decision, not in an effort to remake it according to this Court’s own view of the merits of the matter, but to ensure that the Full Bench stayed within the legal limits imposed on the Full Bench’s decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 35-36 (per Brennan J). The duty and jurisdiction of this Court in reviewing administrative action does “not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of” the Full Bench’s power: ibid.

The Full Bench’s statutory task

57    With the nature of judicial review in mind, it is necessary to say something further about the task which confronted the Full Bench. The Applicant applied to the Fair Work Commission under s 394 of the Fair Work Act for an unfair dismissal remedy: Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2019] FWC 5821 at [1]. The Applicant lodged an appeal of this decision to the Full Bench of the Fair Work Commission: Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606 at [1].

58    Section 604 of the Fair Work Act governs consideration of applications for permission to appeal to the Full Bench. That section provides, without limiting when permission may be granted, that permission to appeal must be granted if the Full Bench is satisfied that it is in the public interest to do so. However, s 400 provides:

400     Appeal rights

(1)     Despite subsection 604(2), the [Fair Work Commission] must not grant permission to appeal from a decision made by the [Fair Work Commission] under [Part 3-2, which concerns unfair dismissal,] unless the [Fair Work Commission] considers that it is in the public interest to do so.

(2)     Despite subsection 604(1), an appeal from a decision made by the [Fair Work Commission] in relation to a matter arising under [Part 3-2] 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.

59    The question of whether a decision of the Full Bench under s 400(1) could be reviewed by this Court under s 39B of the Judiciary Act 1903 (Cth) was considered by the Full Court in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302. Katzmann J (with whom Dowsett and Tracey JJ agreed) stated:

31     The Full Bench was precluded from entertaining the appeal unless it granted permission to appeal and to do that it had to be satisfied that it was in the public interest to do so …

…

33     As Buchanan J said in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] the decision as to whether it is in the public interest to grant permission to appeal plainly involves assessment and value judgments on the part of the Full Bench. In O’Sullivan v Farrer (1989) 168 CLR 210 at 216 Mason CJ, Brennan, Dawson and Gaudron JJ said that:

the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the [statute] may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.

34     That is the position here. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court. So much was found by the Full Court in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [8] (Besanko J); [47] (Jessup J) and at [95]-[104] (Bromberg J). As Perram J noted in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, where the task reposed in a decision-maker:

… is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter.

35     His Honour also noted at [147] that:

[T]he specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand.

36     Applying those principles in this case, it is highly unlikely that Parliament would have intended that a court engaged in judicial review should decide whether it is, in fact, in the public interest to grant permission for leave to appeal to the Commission. Neither is there any other basis upon which the Court can interfere. The [Fair Work Act] does not prescribe the considerations that are to inform the satisfaction of the Full Bench. The discretion conferred by s 400(1) is extremely broad …

60    It is in light of these statements which the Applicant’s Statement of Claim must be assessed. It is that task that I now turn.

How does the Applicant seek to impugn the Full Bench’s decision?

61    The grounds upon which the Applicant sought to impugn the Full Bench’s decision were far from clear. However, reading them for their substance rather than their form, they can be fairly assessed by reference to the following categories.

Bias grounds

62    Paragraph 16 on page 15 of the Applicant’s Statement of Claim provides:

The applicant wishes to reiterate that the honourable Full Bench evaded the most relevant ruling ([citing ACE Insurance]). Very clear and consistent bias is evident.

63    Assuming (in the Applicant’s favour) that the Full Bench failed to cite or consider ACE Insurance, ACE Insurance was not a case dealing with the Full Bench’s discretion under s 400 of the Fair Work Act. In addition, any such failure does not give rise to an even reasonably arguable case of actual or apprehended bias.

64    Paragraph 2(d) on page 9 of the Applicant’s Statement of Claim refers to the words “appeal cannot succeed”, which were used in [7] of the Full Bench’s decision, as follows:

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error …

65    In relation to those words, [2(d)] on page 9 of the Applicant’s Statement of Claim states:

No appeal or any legal matter is guaranteed success nor is it legal to predict failure. It is the fundamental right of the applicant to seek justice on facts, truth and indisputable evidence. In denying the applicant his legal right the honourable Full Bench have been biased and manifestly unreasonable.

66    The first two sentences of this plea are statements that go nowhere. The last sentence is a mere assertion which is not supported by a factual foundation. None of the claims give rise to a reasonably arguable case of bias.

67    First, the Applicant’s Statement of Claim does not support a reasonably arguable case of actual bias on the part of the Full Bench – that is, that the Full Bench was committed to a conclusion already formed that was incapable of alteration, whatever evidence or arguments may have been presented by the Applicant, or the Full Bench having acted with such evident partisanship or hostility to demonstrate it was not open to persuasion in favour of the Applicant: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 519 – 520 [36] and 531 - 532 [72] (Gleeson CJ & Gummow J). Such an allegation must be distinctly made and clearly proved by the Applicant: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [127] (Kirby J).

68    Nor does the Applicant’s Statement of Claim support a reasonably arguable case of an apprehension of bias on the part of the Full Bench – that is, that the fair-minded lay observer might reasonably apprehend that the Full Bench might not have brought an impartial mind to the resolution of the question it had to decide: Isbester v Knox City Council (2015) 255 CLR 135, 146 [20]-[21] (Kiefel, Bell, Keane and Nettle JJ), 154 - 155 [57] (Gageler J); Menzies v Fair Work Commission (2020) 293 IR 301, 316 [64] (Katzmann J).

Procedural fairness grounds

69    Paragraph 2(b) on page 9 of the Statement of Claim provides:

The honourable Full Bench declined the proposition of the applicant during the hearing to obtain the rarest of rare live indisputable evidence through just a five minute interpreting call that would prove beyond any doubt, not just reasonable doubt, that he is not performing the role of an independent contractor.

70    The Applicant explained at the hearing of this interlocutory application that, at the Full Bench hearing, he invited the Full Bench to allow him to conduct a “live” interpretation call so he could demonstrate his former role as an interpreter engaged by the Department.

71    Paragraphs 9 and 10 on page 13 of the Applicant’s Statement of Claim were to similar effect.

72    The problem with this complaint by the Applicant is that the Applicant (in his Statement of Claim or otherwise) has singularly failed to demonstrate how this could have inhibited his ability to meaningfully present his arguments that went directly to the issue for determination by the Full Bench, namely, whether it was or was not in the public interest to grant permission to appeal from the decision of Deputy President Clancy pursuant to s 400(1) of the Fair Work Act (noting that the Full Bench’s ability to grant permission in relation to an error of fact was limited by the terms of s 400(2) of the Fair Work Act).

73    In any event, the transcript of the Full Bench hearing records the following:

VICE PRESIDENT HATCHER: Mr Pal, you want to do a live interpretation?

…

[Applicant]: … I want you to (indistinct) live interpretation for two minutes so you know what interpreting is all about.

VICE PRESIDENT HATCHER: Mr Pal, we frequently use interpreters in our jurisdiction …

…

MR PAL: Okay, fine.

…

MR PAL: Because the problem is in the last hearing, the respondent is chasing shadows so I want to make it very clear - can I show you this, your Honour? This is the example of live call, complete cycle of interpreting. Can you see it, your Honour?

VICE PRESIDENT HATCHER: No.

MR PAL: No? Okay. Here is step one: there is the client. This client, this is an ordinary speaker and there is a professional. They sit down together and decide the call, the time of the call, what the call is about, the language required and the gender. They indicate all the preferences and (indistinct) in the picture. This is what they call independent contracting. That's step one. Step two: the host contacts this automatic system of interpreters. So there is no human presence there, neither am I there, nor is anybody else …

[The Applicant then continued to explain his version of how an interpreter call proceeds.]

74    In these circumstances, the Applicant was given an opportunity to explain the nature of his alleged engagement with the Department. It is not clear how this was relevant to the Full Bench’s statutory task, but, even if it was, the Applicant was given an opportunity to explain the position as he sees it.

75    There is no merit in any claim that the Applicant was denied procedural fairness by the Full Bench.

Failure to engage with the test that the Full Bench was required to apply

76    There are then several claims in the Applicant’s Statement of Claim which simply fail to engage with the statutory task which the Full Bench was required to undertake. The following are examples.

77    Paragraphs [1] to [17] on pages 3 to 8 appear under the heading “Issues arising from initial hearing presided by Deputy President Clancy that led to the Permission to Appeal (U 2019 / 2397)”. Those paragraphs set out various matters which, it appears, amount to alleged errors of law or denials of procedural fairness by Deputy President Clancy during the first hearing in the Fair Work Commission. They do not engage with the Full Bench’s reasoning or statutory task.

78    Paragraph 2(e) on page 10 of the Applicant’s Statement of Claim fixes on the Full Bench’s statement that “… the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal”. In relation to those words, paragraph 2(e) on page 10 makes the following claim:

“Not necessarily” is an inconclusive term. It could be sufficient basis [sic]. In any case the benefit of doubt must go to the applicant. The honourable Full Bench have again been manifestly unreasonable.

79    Paragraphs 4 to 6 on page 11 of the Applicant’s Statement of Claim take issue with an aspect of the Fair Work Commission’s decision which was quoted in the Full Bench’s decision.

80    Paragraph 7 on page 12 of the Applicant’s Statement of Claim merely asserts the following:

What prevented the Department of Home Affairs from making the correct, true and transparent Independent Contractor agreement [with the Applicant]? Because it knows it is a misclassification, misleading and deceptive.

81    Paragraphs 11 and 12 on page 14 of the Applicant’s Statement of Claim provide:

The honourable Full Bench got confirmation from the Department Of Home Affairs during the hearing that the applicant was paid superannuation guarantee. The ATO clearly says that it is mandatory for employers to make this payment to its employees. Another evidence evaded.

The decision of the honourable Full Bench has evaded all the pertinent and undisputed evidence provided by the applicant that he is not a genuine Independent Contractor as he was not performing that role and does not meet any of the salient features listed above and also mentioned in the fact sheets of the FWC and FWO websites.

It has also evaded any evidence that the Department Of Home Affairs gave to the effect that the applicant was not an Independent Contractor but a labour Hire employee and also an employee under Common Law Indicia.

82    Paragraph 14 on page 14 of the Statement of Claim provides:

The Department [o]f Home Affairs legal representative gave evidence that he was quoting laws not based on facts when the evidence he was presenting was intended to prove the facts of the matter.

83    Paragraph 17 on page 15 of the Applicant’s Statement of Claim states, without more, the following:

The honourable Full Bench demonstrated improper, unreasonable exercise of power by failing to take relevant considerations into account and taking manifestly irrelevant considerations into account.

84    These claims are examples of the following:

(1)    A complete failure to engage with the statutory task which the Full Bench was required to conduct, namely whether it was or was not in the public interest to grant permission to appeal from the decision of Deputy President Clancy pursuant to s 400(1) of the Fair Work Act.

(2)    They do no more than invite the Court to impermissibly entertain a merits review of the decision of the Full Bench, which would be contrary to several authorities: see Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302, 308 [28]-[29] (Katzmann J) (Dowsett J agreeing at 303 [1] and Tracey J agreeing at 303 [2]); Cook v Australian Postal Corporation [2017] FCA 509 at [5] and [27] (Katzmann J); Mwango v Fair Work Commission [2019] FCA 127 4 at [31] and [ 46] (Thawley J ); Menzies v Fair Work Commission (2020) 293 IR 301, 308 - 309 [27], 310 [33] (Katzmann J).

(3)    Essentially entail emphatic disagreement with the factual decision made by the Full Bench, which is insufficient to establish jurisdictional error: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [129] (Crennan and Bell JJ).

(4)    At times, the Applicant’s Statement of Claim suggests that there was “no evidence” to support the Full Bench’s decision. That is a difficult proposition for the Applicant to establish: a decision being “against the evidence” or “against the weight of the evidence” belong “to appeals from courts of law and have particular application to jury verdicts” (Collins v Minister for Immigration & Ethnic Affairs (1981) 4 ALD 198 at 201; 36 ALR 598 (per Fox, Deane and Morling JJ) (Collins)). Even in that context, “they do not involve questions of law” (ibid). An applicant “who attacks a conclusion of [a] Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based” (ibid; emphasis added). The Full Bench’s decision does not fall into that category.

Other general complaints

85    There are then other matters in the Statement of Claim which are more general.

Paragraph 1 on page 8 of the Statement of Claim

86    Paragraph 1 on page 8 of the Statement of Claim refers to [7] of the Full Bench’s reasons, where the Full Bench stated:

Mr Pal contended in his unfair dismissal remedy application that he had been forced to resign from his employment with the Commonwealth as a result of an unfounded allegation of misconduct, and that this constituted an unfair dismissal. The Commonwealth contended in response that the application was not within the Commission’s jurisdiction under Pt 3-2 of the [Fair Work Act] because, firstly, Mr Pal was not a person protected from unfair dismissal because he had never been an employee of the Commonwealth and, secondly, he had not in any event been dismissed.

87    Paragraph 1 on page 8 of the Applicant’s Statement of Claim states:

… How did the honourable Full Bench come to this totally unfair and unjust conclusion when the matter of dismissal was never heard. It was scheduled for days 2 to 4 and the hearing was permanently adjourned on day one. Such an extreme bias and prejudice against the applicant creates a serious doubt on the credibility of the honourable Full Bench. The decision deserves to be annulled on this ground.

88    A cursory glance at [7] of the Full Bench’s reasons shows that the Full Bench was merely setting out there an argument put by the Commonwealth. That paragraph was not a “conclusion” of the Full Bench, let alone a “totally unfair and unjust conclusion”. The premise of paragraph 1 on page 8 of the Applicant’s Statement of Claim lacks any foundation. The plea is hopeless and has no prospect of success.

Paragraphs 2(a), 2(c), 2(d) and 2(e) on pages 8 to 10 of the Statement of Claim

89    Paragraph 2 on page 8 of the Applicant’s Statement of Claim refers to [14] of the Full Bench’s reasons, where the Full Bench stated:

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error [citing Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]]. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal [citing Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]].

90    Paragraph 2(a) on page 8 of the Applicant’s Statement of Claim claims that the words “However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal” in this sentence are a “clear indication that [the Full Bench] determined an error”. These words do nothing of the sort. Paragraph 2(a) on page 8 of the Applicant’s Statement of Claim has no reasonable prospect of success.

91    Paragraph 2(c) on page 9 of the Applicant’s Statement of Claim fixes on the words “unless an arguable case of appealable error is demonstrated” in [14] of the Full Bench’s reasons. In relation to those words, [2(c)] on page 8 of the Statement of Claim provides:

An error is an error. No error of law is insignificant to be termed unarguable or unappealable. Nor can it be condoned. There is no legal measure of scale as to what is arguable or appealable and what is not. Some hearings have gone on for weeks and months on the determination of a single error. Smallest of errors can make the difference between acquittal and conviction. On the contrary these error(s) are indefensible by the Department of Home Affairs.

A decision cannot be made on uncertainties or conjectures. Evidence beyond reasonable doubt is the only criteria. It was mandatory for the honourable Full Bench to allow the appeal on indisputable facts, truth and evidence presented. The honourable Full Bench have been biased and manifestly unreasonable.

92    That claim at most asserts that the words “unless an arguable case of appealable error is demonstrated” involved an error of law. The plea fails to articulate any rational or reasonable basis why that involved an error of law. The plea has no reasonable prospect of success.

Paragraph 13 on page 14 of the Applicant’s Statement of Claim

93    Paragraph 13 on page 14 of the Applicant’s Statement of Claim states:

The entire submission and evidence of the Department [o]f Home Affairs should be regarded as invalid as its legal representative was not cross examined on oath. Strangely this too was evaded by the honourable Full Bench.

94    This plea has no proper basis. It is entirely unclear why it is said that the Department of Home Affairs’ legal representatives should have been cross-examined on oath. An assertion that such cross-examination should have occurred does not provide any basis for a claim that the “entire submission and evidence of the Department [o]f Home Affairs should be regarded as invalid”. Even assuming (in the Applicant’s favour) that there may have been some utility in cross-examining “the Department [o]f Home Affairs legal representative”, what utility that would have provided is not identified. As a consequence, the plea’s premise cannot logically lead to the conclusion that “[t]he entire submission and evidence of the Department [o]f Home Affairs should be regarded as invalid”, and provides no support for the pejorative statement that “this too was evaded by the … Full Bench”.

Does the Applicant claim any error of law on the face of the record?

95    A different basis upon which the Applicant might succeed is if the Applicant could show an “error of law on the face of the record”. However, the Applicant’s Statement of Claim does not identify with precision what the Applicant contends the record is (or might be), and nor is there anything close to precision concerning any error of law contained in any such asserted record.

96    I am not satisfied that the Applicant’s Statement of Claim includes a plea which would properly engage the law relating to “error of law on the face of the record”: see eg Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; 235 FCR 305.

Does the declaration or compensation sought by the Applicant have a reasonable prospect of success?

97    Even assuming that the Applicant could properly establish some of the generalised grounds set out in the Applicant’s Statement of Claim, the relief sought by the Applicant is a declaration and compensation.

98    However, to grant such relief would overstep the boundaries of this Court’s supervisory jurisdiction. As Katzmann J (Dowsett and Tracy JJ agreeing) stated in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; 226 FCR 302 at [28]-[30]:

The Court’s jurisdiction to hear the application derives from s 39B(1) of the Judiciary Act 1903 (Cth), which relevantly provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth and s 39B(1A)(c), which provides that the original jurisdiction of the Court includes jurisdiction in any matter arising under any laws made by the Parliament (other than criminal matters).

Despite the omission in s 39B(1) of the writ of certiorari, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court, in relation to matters in which it has jurisdiction, the power to issue or direct the issue of “writs of such kinds, as the Court thinks appropriate”. Moreover, the Full Court has held that, at least in cases which have not been referred to it by the High Court, certiorari is available as a “stand alone” remedy, not merely when ancillary to the relief mentioned in the Judiciary Act: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260; EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8. Accordingly, contrary to the parties’ common assumption, at least in the written submissions, provided that an error of law is apparent on the face of the record, certiorari will issue even if the error does not go to jurisdiction. In this case there appears to be no dispute that the record is constituted by the Full Bench decision which incorporates its orders and reasons.

Contrary to the assumption inherent in Mr Baker’s application, however, the Court has no power to make a finding about whether his dismissal was harsh, unjust or unreasonable or to make orders for reinstatement or damages. If the application were well-founded and the Court were disposed to quash the decision, it could only order that the matter be remitted to the Commission for determination according to law …

(Emphasis added.)

99    In these circumstances, even if the Applicant won at trial on the basis of the claims in his Statement of Claim, to grant the relief sought by the Applicant in his Statement of Claim would overstep the boundaries of judicial power and impermissibly exercise powers which Parliament has reposed in the Fair Work Commission by way of the Fair Work Act.

Do the Applicant’s claims have no reasonable prospect of success?

100    I have set out above several examples of the problems with the Applicant’s Statement of Claim and approach to this proceeding. I have not considered every paragraph in the Applicant’s Statement of Claim. It is unnecessary to do so. The examples set out above provide a representative sample of the claims advanced by the Applicant in this proceeding.

101    To the extent the Applicant’s claims have an identifiable basis, I have assumed (in the Applicant’s favour) that the Applicant would establish those bases at trial. Even on that assumption, as demonstrated by the assessment of the Applicant’s Statement of Claim above, whether taking the Applicant’s Statement of Claim as a whole or taking each claim in it individually, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding.

102    The Applicant’s Statement of Claim does not logically relate to the reasoning of the Full Bench or indeed the Fair Work Commission, much less demonstrate a jurisdictional error or error of law on the face of the record. The written and oral submissions of the Applicant did not engage with the arguments advanced on behalf of the Commonwealth, nor with the authority upon which they were based. The Applicant’s Statement of Claim purports to seek judicial review of the Full Bench’s decision, but fails to engage with the statutory task which the Full Bench was required to undertake. The following statement of Bromwich J in Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585 at [30] is equally applicable to the Applicant’s claims:

In all the circumstances, [the Commonwealth]’s case for summary dismissal is unassailable. This Court has no business – as well as no authority – to second-guess the Full Bench’s state of satisfaction that it was not in the public interest to grant [the Applicant] permission to appeal, at least in the absence of alleging and being in a position to mount a case of jurisdictional error in reaching that conclusion. The case sought to be brought for judicial review in this Court is devoid of merit and has no prospect of success. In those circumstances, summary dismissal is inevitable, with the tests for summary dismissal authoritatively stated by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, especially at [24]-[25], being easily met.

DISPOSITION

103    For the reasons set out above, summary judgment must be entered in favour of the Commonwealth.

Costs

104    The Commonwealth contended that, if its application for summary judgment succeeded, the Court’s discretion under s 570(2) of the Fair Work Act would be enlivened. In that case, the Commonwealth indicated that it would seek to be heard on whether the Applicant should pay the Commonwealth’s costs of the Commonwealth’s application for summary judgment.

105    In these circumstances, I will make an Order that provides the Commonwealth with that opportunity.

Associate:

Dated:    19 October 2020