Federal Court of Australia

Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2025] FCA 114

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the orders made by Judge Humphreys in Kailash Lawyers Pty Ltd v Patial [2024] FedCFamC2G 268 and Kailash Lawyers Pty Ltd v Patial (No 2) [2024] FedCFamC2G 269 be dismissed.

2.    The applicant pay the respondent’s costs of the application, subject to any constraints expressed in Birketu Pty Ltd v Atanaskovic [2025] HCA 2.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from the transcript

BROMWICH J:

1    This is an application for leave to appeal from an order made by a judge of Division 2 of the Federal Circuit and Family Court of Australia, granting an application for an order that he pay costs awarded by a Commissioner of the Fair Work Commission in the sum of $36,398.05 plus GST, plus backdated interest and costs of the application: Kailash Lawyers Pty Ltd v Patial (No 2) [2024] FedCFamC2G 269 (costs enforcement decision). Another judgment, given immediately prior to this decision on the same day, refused an adjournment application, with the matter already having been adjourned from 11 March 2024 to 12 March 2024: Kailash Lawyers Pty Ltd v Patial [2024] FedCFamC2G 268 (adjournment decision). The Commissioner’s decision is Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 2721.

2    Permission to appeal from the Commissioner’s decision was refused by the Full Bench of the Fair Work Commission: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2023] FWCFB 73. The history of those prior proceedings is summarised by the Full Court of this Court in an unsuccessful appeal by the present applicant in relation to an original jurisdiction proceeding in this Court: Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155 (Rares, Jackson and Halley JJ). The reasons of the Full Court contain a summary of the history of the underlying dispute between the parties that has been litigated unsuccessfully by the applicant before the Fair Work Commission and the Full Bench of the Fair Work Commission.

3    This application is concerned with the question of whether the applicant has made a sufficient case for the grant of leave to appeal in respect of either the adjournment decision or the costs enforcement decision: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ); Mastercard Asia/Pacific Pte Ltd v Australian Competition and Consumer Commission [2024] FCA 1237 at [1]-[3] (Lee J). It is important to note that any appeal that the applicant seeks to bring must be directed to error in the order that was made by the primary judge, although such an error may be manifested in a reason that is directed to the order that is challenged. A mere dispute with a collateral reason that does not infect the order sought to be challenged will not suffice. Nor is it ordinarily relevant.

4    It should be noted at the outset that the applicant’s application for leave to appeal, his draft notice of appeal and his written and oral submissions stray beyond those constraints. Repeatedly, the applicant attempted to relitigate aspects of the history of the dispute and, in particular, the basis upon which the costs order was made by the Commissioner. That does not assist with the question of whether leave should be granted to allow the applicant to appeal from the two decisions challenged.

5    I will deal with the adjournment decision and the application for leave to appeal from that decision first. I have looked carefully at the primary judge’s reasons, both in terms of what took place on the transcript and in terms of the short judgment that his Honour gave. In substance, the primary judge was not satisfied that the evidence before him, in particular a medical certificate, indicated that the applicant was unfit to attend court. His Honour did not accept that the medical certificate in the form the applicant presented justified the matter being further adjourned. His Honour cited a decision by Davies J of this Court: MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 at [13].

6    The medical certificate supplied by the applicant simply says that the applicant will be unfit for work/school/usual activities from 11 March 2024 to 13 March 2024. Based on the certificate, his Honour was not satisfied that an adjournment should be granted. His Honour described the substantive application for the enforcement order as being of a very short compass and noted that the applicant had had plenty of time to prepare for the matter prior to that day.

7    Looking at the reasons and what was contained on the transcript, I can see no error at all in the decision reached by the primary judge in not adjourning upon that basis. In any event, as counsel for the respondents points out, it transpires that, in fact, the applicant had no actual case to put forward before his Honour in relation to resisting the making of the enforcement order, a matter to which I will shortly turn. I am not satisfied that there is any error, or that there will be any injustice in not granting leave to appeal in relation to the adjournment decision and, accordingly, I refuse such leave.

8    Turning to the application for leave to appeal from the costs enforcement decision, the applicant’s two sets of written submissions in chief, his submissions in reply, the application itself, and his oral submissions have not come close to establishing any error in the very short judgment either in relation to the costs enforcement order, the interest order or the application for costs. It was a very simple matter, and I am satisfied that the primary judge, contrary to what the applicant submitted at the commencement of the appeal hearing, did have jurisdiction to entertain it, and did so upon the express provisions contained within the Fair Work Act 2009 (Cth) (FWA).

9    Those particular provisions were identified in a judgment cited and relied upon by the primary judge: Mitford Investments (WA) Pty Limited (Trustee) v Adaszko [2022] FedCFamC2G 827 at [24]-[29] (Judge Kendall). His Honour made no error relying upon Mitford in finding that there was power to make the order, and I am not satisfied that there was any defect at all in the application by which the order was sought. To the contrary, it seems to me that the application was entirely valid and that the order for enforcement was properly made. All of this is reflected in the primary judge's reasons. Similarly, there is no error that I can see in the order to pay interest.

10    In relation to the application for costs, his Honour expressly dealt with that, although the applicant made some generalised submissions about that being unfair and objected to it being dealt with on the spot. Despite being legally qualified, the applicant cited his lack of legal representation as being a reason why the costs order should not have been made. I am not satisfied there was any error in the primary judge’s conclusions.

11    In my view, the application for leave to appeal was doomed from the outset and it never had any prospect of success. In my view, this application should never have been brought. Accordingly, I dismiss the application for leave to appeal.

12    In light of the views that I have already expressed, I am satisfied that the terms of s 570(2)(a) of the FWA have been met, in that this appeal proceeding was brought without reasonable cause. I am similarly satisfied that there were unreasonable acts involved in the sheer volume of material and arguments that were put, which went, for example, to the underlying correctness of the costs order that was made by the Commissioner in circumstances where permission to appeal from that order was refused by the Full Bench of the Fair Work Commission and the validity of the costs order was not a matter that was before this Court: s 570(2)(b) of the FWA. In all the circumstances, the applicant should pay the costs of the application, subject to any constraints expressed in Birketu Pty Ltd v Atanaskovic [2025] HCA 2.

Associate:

Dated:    27 February 2025