Federal Court of Australia

Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants v Patial [2026] FCA 1403

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application filed on 31 December 2025 be dismissed.

2.    The events in proceeding NSD1016/2021 which concern the present applicants’ application under s 37AO of the Federal Court of Australia Act 1976 (Cth) in proceeding NSD1016/2021 be treated as events occurring in this proceeding.

3.    Pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), the respondent not initiate or continue any proceedings in the Federal Court of Australia without leave of the Court.

4.    The respondent pay the applicants’ costs of this proceeding.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    The applicants – Kailash Lawyers Pty Ltd, Koala Investment Property Pty Ltd and Kuber Investment Group Pty Ltd – seek an order, pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the respondent, Mr Prateek Patial, not initiate or continue any proceeding in this Court without the leave of the Court.

2    In summary, the order should be made because of the manner in which Mr Patial has instituted and conducted proceedings since 2020. In that year, he commenced a proceeding in the Fair Work Commission, following the purported termination by Kailash of a written contract between Kailash (a legal firm) and Mr Patial (then, a legal practitioner) entered into in April 2019 and titled “Agreement for General Use”. That proceeding started from the premise that Mr Patial had been an employee of Kailash. The Commission rejected that premise, and dismissed the proceeding. Mr Patial’s attempts to appeal that decision were unsuccessful. The High Court of Australia subsequently rejected an application by Mr Patial for the issue of a constitutional or other writ against the Commission.

3    Mr Patial also commenced a proceeding in this Court which was based in the most part upon the premise that Mr Patial was an employee of Kailash. Mr Patial’s statement of claim was struck out as an abuse of process and his appeal from that order was dismissed. Mr Patial has also sought to contend that he was an employee in proceedings in the Supreme Court of New South Wales. This continual agitation of an issue, despite various decisions to the contrary, has been vexatious.

4    So too has the manner in which Mr Patial has conducted himself during the various proceedings. He has frequently made highly scandalous allegations and has pursued irrelevant matters and hopeless arguments that have greatly increased the burden on the applicants and upon the Commission and the Courts.

5    Mr Patial has thus frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, and the applicants’ request that the Court make a vexatious proceedings order against him should be granted.

B.    The history of proceedings involving Mr Patial

6    The genesis of the protracted litigation between Mr Patial and the applicants was the provision in 2019 and 2020 of services by Mr Patial to Kailash. Those services were provided in the context of the contract, which was signed by Mr Patial and Mr Amit Pall, the sole director of Kailash (and Koala and Kuber).

7    In August 2020, Kailash purported to terminate the contract.

8    In September 2020, Mr Patial commenced proceeding U2020/11942 in the Commission as against Kailash.

9    On 6 August 2021, Commissioner McKenna of the Commission dismissed that proceeding (Commission’s substantive decision). The Commissioner’s reasons for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167.

10    Commissioner McKenna held that Mr Patial was not an employee of Kailash and thus that the Commission lacked jurisdiction to determine the application ([2], [23], [75], [81]).

11    In reaching that conclusion, the Commissioner found that:

(1)    Mr Patial made an unsolicited approach to Kailash/Mr Pall and sought to obtain supervision as a restricted legal practitioner ([23]);

(2)    the contract was freely negotiated between Mr Patial and Kailash and its terms were similar to the terms of an earlier agreement between Mr Patial and another law firm ([3], [4], [23]);

(3)    Mr Patial and Kailash entered into a contract “squarely not intended by either of them to involve an employment relationship” ([34]);

(4)    the contract in the form proposed by Mr Patial to Kailash included: “it is expressly understood and stated that the parties do not form an employer/employee relationship” ([35], [75]);

(5)    in around April 2020 Mr Patial declined to accept an offer made to him by Mr Pall to become an employee of Kailash. Mr Patial determined instead to continue to work on the basis of the terms of the contract ([23]);

(6)    Mr Patial sent regular invoices to Kailash for a percentage of professional fees and Mr Patial was remunerated on the basis of these invoices ([23]); and

(7)    during 2020, at a time Mr Patial claimed to have been employed by Kailash, he received JobKeeper payments via a company of his own ([23]).

12    In the course of her reasons, the Commissioner made the following observations:

(1)    at [6]:

…I propose to note that the hearing (which was allocated to me concerning both jurisdiction and merits) ran to an atypical four days – atypical considering the narrow scope of matters of actual relevance, albeit some time was lost through endeavours to settle the matter during the course of the hearing itself. Regrettably, much of the evidence adduced by [Mr Patial] and/or matters arising in his unfocussed cross-examination of [Kailash’s] two witnesses, and in his oftentimes discursive evidence and submissions, was not only irrelevant, but manifestly irrelevant, to the matters properly before me for determination... ;

(2)    at [9]:

… the evidence and submissions indicated that [Mr Patial] and [Kailash]/Mr Pall have made complaints concerning each other to the Law Society and/or the Office of the Legal Services Commissioner. [Mr Patial] has referred certain matters to, variously: the Australian Taxation Office (“ATO”), the Migration Agents Registration Authority and the former Department of Immigration and Border Protection (which has now been subsumed into the Department of Home Affairs). [Mr Patial] foreshadowed that he would be commencing proceedings in the Federal Court. Separately, [Mr Patial] made submissions that he was an employee, within the meaning of certain factors identified by the ATO as to whether a worker is an employee or contractor for taxation and superannuation purposes…;

(3)    at [11] to [12]:

…[Mr Patial] made repeated submissions about sham contracting arrangements and the Terms, and alleged breaches of provisions of the Act …

I have before me an application for an unfair dismissal remedy. I do not propose to make any findings about sham contracting arrangements…; and

(4)    at [20]:

I will not catalogue in the decision the irrelevant matters raised in [Mr Patial]’s case or recount the raft of internally inconsistent matters addressed in his evidence, submissions and propositions. Moreover, I will not, in the decision, air the various allegations repeatedly canvassed by [Mr Patial] concerning all manner of things that were not relevant to the determination of this application.

13    On 29 September 2021, Mr Patial commenced proceeding NSD1016/2021 in this Court.

14    On 24 November 2021, in proceeding C2021/5106, the Full Bench of the Commission (Vice President Catanzariti, Deputy President Bull and Commissioner Ryan) refused Mr Patial’s application for permission to appeal the Commission’s substantive decision: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWCFB 6055.

15    On 9 June 2022, in proceeding NSD1016/2021, I made orders, inter alia, striking out Mr Patial’s statement of claim as an abuse of process; for the removal of that statement of claim from the Court file; and allowing Mr Patial to serve a proposed further statement of claim with respect to allegations that did not depend upon the premise that Mr Patial was an employee of Kailash. My reasons for doing so are recorded in Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662 (Patial (No 1)).

16    In the course of those reasons for judgment, I made the following observations:

(1)    at [41]:

The above issues all depend upon the proposition that [Mr Patial] was employed by [Kailash]. As noted above, that very issue was considered in detail and determined by the Commissioner adversely to [Mr Patial]. ;

(2)    at [42]:

If [Mr Patial] were allowed to re-litigate this issue, [Kailash] would be vexed and oppressed in having to litigate again an issue already determined in the Commission. The re-litigation of the issue would run contrary to the principle of finality, would create the possibility of inconsistent judgments on the same issue and be an inefficient use of the Court’s resources. All of these matters would tend to bring the administration of justice into disrepute. I am comfortably satisfied that the pursuit in this Court of a case based upon the proposition that [Mr Patial] was an employee of the respondent in the circumstances where that proposition was found to be false by the Commission is an abuse of process. ; and

(3)    at [61] to [63]:

(1)    Pleading of grave allegations

The present Statement of Claim (and the Originating Process) contains a number of very serious allegations concerning the conduct of Mr Pall. In view of the conclusions reached above, it has not been necessary to set these out in detail or to address the manner in which they have been pleaded. However, it is fair to say that grave allegations have been liberally made without detailed particulars.

If the leave to replead Parts N and P of the Statement of Claim is exercised, the obligations set out in rr 16.02(2)(a) and (b) and 16.42 and rr 21 and 32 of the Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) must be borne in mind.

(2) Removal of Statement of Claim from the Court file

[Kailash, Koala and Kuber] also seek the removal of the Statement of Claim from the Court file. Rule 16.21(2), which is set out at [23] above, provides that a party may apply for such an order if the pleading contains, inter alia, scandalous or vexatious material or is otherwise an abuse of process. In view of the conclusions that I have reached above as to the inclusion of grave allegations without detailed particularisation and that most of the Statement of Claim constitutes an abuse of process, I will accede to the application and order that the Statement of Claim be removed from the Court file. I note that no application has been made with respect to the Originating Process.

(italic and bold emphasis in original)

17    On 18 July 2022, in proceeding U2020/11942, Commissioner McKenna decided that Mr Patial should pay Kailash’s costs relating to the Commission’s substantive decision (Commission’s costs decision). The Commissioner’s reasons for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 1449.

18    In the course of those reasons, the Commissioner made the following observations:

(1)    at [64]:

… Further, the vast majority of Mr Patial’s submissions bore no relevance to the proceedings. … abuse of the Commission’s and parties’ time is evident throughout Mr Patial’s written materials, and a further justification for why the costs application has been brought and why costs should be awarded in Kailash’s favour. ;

(2)    at [67]:

… the allegations made by Mr Patial are examples of his vexatious conduct and support the ordering of costs against him … Mr Patial’s vexatious objective was confirmed in his oral statements to the Commission at the hearing on 23 March 2022 when Mr Patial said “…I will not even stop for that. Either I lose or win it doesn’t matter. I will also chase you. It doesn’t matter how big firm you are I don’t care”…

(italic emphasis in original);

(3)    at [98]:

…even now, and after all that was said in the proceedings, Mr Patial still appears to have a lack of appreciation that an application for an unfair dismissal remedy is not a vehicle to air/have determined issues about alleged underpayments. ;

(4)    at [106]:

…But what I can comfortably conclude, and find, is that the application was not so much about an application for an unfair dismissal remedy but, rather, an application that had as its central purpose the pursuit of alleged underpayments; and that Mr Patial also used the application to level all manner of allegations against Mr Pall (and his representatives) – allegations which had no relevance to the application before me. These matters were advanced in Mr Patial’s case repeatedly, and in notably vitriolic ways. I accept Kailash’s submissions that the unfair dismissal application was made vexatiously and with a predominant purpose of harassing Kailash. ; and

(5)    at [109]:

…More particularly, Mr Patial’s submissions otherwise largely also included repeated allegations of a most serious nature, without anything in support of those allegations about Kailash’s witnesses and representatives…

19    On 29 July 2022, in proceeding NSD1016/2021, I made orders requiring Mr Patial to pay the present applicants’ costs referable to Patial (No 1) on the indemnity basis and forthwith. My reasons for doing so were subsequently published as Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899 (Patial (No 2)).

20    In the course of those reasons for judgment, I made the following observations:

(1)    at [21] to [22]:

First, as is recorded in Patial (No 1), the bulk of the Statement of Claim was struck out because it was an abuse of process as it sought to re-agitate the issue determined by the Commission as to whether [Mr Patial] had been employed by [Kailash] …

Secondly, [Mr Patial] behaved unreasonably in pursuing his claim against [Kailash] based upon the proposition that he had been an employee of [Kailash] and was put squarely on notice in the correspondence set out at [10], [11], and [13] above that: [Kailash, Koala and Kuber] contended that the pursuit of the Statement of Claim was an abuse of process and the detailed basis for that contention; that [Kailash, Koala and Kuber] would deploy that contention in support of an application to dismiss the proceeding to strike out the Statement of Claim if [Mr Patial] did not withdraw the Statement of Claim and if [Kailash, Koala and Kuber] succeeded with their foreshadowed application they would seek an order for the payment of costs on an indemnity basis. Despite being squarely on notice of these matters, [Mr Patial] persisted.

(italic emphasis in original); and

(2)    at [43]:

I am satisfied that costs should be payable on an indemnity basis. [Mr Patial], who is a legal practitioner, should have been aware, from the commencement of the proceeding on 29 September 2021 that he was engaging in an abuse of process. Despite the position being clearly spelt out for him by the solicitor for [Kailash, Koala and Kuber] in the correspondence extracted at [10], [11] and [13] above, he persisted.

21    On 28 October 2022, in proceeding U2020/11942, Commissioner McKenna made orders requiring Mr Patial to pay Kailash’s costs in a fixed sum (Commission’s costs quantification decision). The Commissioner’s reasons for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 2721.

22    In the course of those reasons, the Commissioner made the following observations (at [6] to [9]):

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

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

“Allegations of improper conduct

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

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

6.1 bribing Commissioner McKenna;

6.2 colluding with Commissioner McKenna;

6.3 perjuring themselves;

6.4 tampering with evidence; and

6.5 used their race to achieve an advantage.

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

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

Irrelevancies

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

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

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

11.1 the appropriateness of schedule of costs detailing costs incurred;

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

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

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

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

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

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

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

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

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

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

(italic emphasis in original)

23    On 6 December 2022, in proceeding C2022/7586, Deputy President O’Neill of the Commission dismissed an application by Mr Patial for a stay of the Commission’s substantive decision, the Commission’s costs decision, the Commission’s costs quantification decision and the corresponding orders. The Deputy President’s reasons for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 3199.

24    In the course of those reasons, the Deputy President made the following observations:

(1)    at [8]:

… The Notice of appeal is replete with highly offensive accusations of corruption, racism and bias against Commissioner McKenna and accusations of evidence tampering, perjury and collusion by [Kailash’s] witnesses. Similar accusations against the Commissioner were made by [Mr Patial] in his submissions in response to the application for costs. There is no basis to sustain these contentions, and such serious allegations should not be made without a proper basis. That such serious allegations are repeatedly made without proper foundation by a legal practitioner, such as Mr Patial, is inexcusable… ;

(2)    at [9]:

Insofar as the Notice of appeal relates to the Substantive Decision, the Substantive Order, and the Appeal Decision, there is no arguable case. [Mr Patial] has already sought and been refused permission to appeal against the Substantive Decision and the Substantive Order and the Act does not provide for appeal of the Appeal Decision to another Full Bench of the Commission... ; and

(3)    at [12]:

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

25    On 19 April 2023, in proceeding C2022/7586, a Full Bench of the Commission (Deputy Presidents Clancy and Millhouse and Commissioner Harper-Greenwell) refused Mr Patial: (1) permission to appeal the earlier decision; (2) an extension of time in which to file an appeal against the Commission’s costs decision; and (3) permission to appeal from the Commission’s costs quantification decision. The Full Bench’s reasons for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2023] FWCFB 73.

26    In the course of those reasons, the Full Bench made the following observations:

(1)    at [11]:

Dealing firstly with the reason for the delay, [Mr Patial’s] submission at the hearing was that there has been conduct of bribery, corruption, perjury, evidence tampering and dishonesty in the proceedings and that “it takes time to find out these things.” As we will outline below, we regard the conduct allegations [Mr Patial] has made as entirely baseless.;

(2)    at [32]:

We agree with the Full Bench’s determination in the Appeal Decision that its conclusion in relation to the Code made it unnecessary to deal with any other grounds of appeal. Further, we are not persuaded that any ground of appeal has been advanced, in relation to the application of the Code in the appeal proceeding before us, that gives rise to a reasonably arguable case of error. As such, we have concluded that [Mr Patial] has no reasonable prospect of obtaining permission to appeal against both the Substantive Decision and the Substantive Order, as the appeal against them does not enliven public interest. Accordingly, there is little likelihood that the appeal grounds advanced in relation to the Substantive Decision and the Substantive Order would be upheld if time was extended.

(footnote omitted);

(3)    at [47]:

Earlier in this Decision we have noted that in outlining his grounds of appeal in the Form F7, [Mr Patial] has largely reproduced the same grounds of appeal outlined in the Form F7 – Notice of Appeal dated 27 August 2021. Additionally, [Mr Patial] included the following 21 paragraphs as grounds of appeal:

“1.    CORRUPT COMMISSIONER decision is the Error on the Face of the Law.

2.    CORRUPT COMMISSIONER has no legal qualification to assess the costs.

3.    CORRUPT COMMISSIONER didn’t refer the costs to the costs assessor for assessment when it was explicitly raised by [Mr Patial].

4.    CORRUPT COMMISSIONER took a BRIBE to deliver this decision;

5.    CORRUPT COMMISSIONER communicated directly with WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE) AND WHITE TROY PLUMMER or EMPLOYSURE LAW.

6.    CORRUPT COMMISSIONER directed [Mr Patial] to provide the cross-examination questions in writing to WHITE SARAH CHRISTIE in advance.

7.    CORRUPT COMMISSIONER ordered [Mr Patial] to cross-examine WHITE SARAH CHRISTIE in the middle of proceedings, that is, before filing the Respondents’ response.

8.    CORRUPT COMMISSIONER answers the questions on behalf of WHITE SARAH CHRISTIE and puts words in WHITE SARAH CHRISTIE’s mouth at cross-examination of Christie.

9.    CORRUPT COMMISSIONER ignored the FAIR WORK ACT 2009 and FAIR WORK REGULATIONS.

10.    CORRUPT COMMISSIONER ignored the LEGAL PROFESSION UNIFORM LAW AND AUSTRALIAN CASE LAWS.

11.    CORRUPT COMMISSIONER ignored the evidence provided by the Law Society NSW.

12.    CORRUPT COMMISSIONER ignored the facts and evidence that the Respondent’s Representative did the Evidence tampering, colluding with the witness, and throwing allegations without evidence on [Mr Patial].

13.    THE WHITE RACIST COMMISSIONER is BIASED and delivered this decision to give favours and hide the misconduct of WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE) AND WHITE TROY PLUMMER – WHO COSIGNED THE FALSE SUBMISSIONS and breached the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

14.    NAZI COMMISSIONER made this decision to suppress the victim’s voice. I am the victim in these proceedings.

15.    Evidence Tampering by WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE).

16.    Persuasion of Perjury by WHITE SARAH CHRISTIE (RESPONDENT REPRESENTATIVE).

17.    WHITE SARAH CHRISTIE Colluded with the Witness, Ms Simrat Pal Kaur.

18.    WHITE SARAH CHRISTIE provided the fake and tampered invoices.

19.    WHITE SARAH CHRISTIE tempered (sic) the evidence by intentionally removing her signatures from emails that state her job title was Employment Relations Associate so that she could claim the rate of a Consultant.

20.    Perjury by Mr Amit Pall in the proceedings.

21.    In addition, there are Significant Errors of Fact in the decision given by the CORRUPT COMMISSIONER.”

(bold and italic emphasis in original);

(4)    at [78]:

None of the grounds of appeal are reasonably arguable and the public interest is not engaged. Permission to appeal the Costs Quantification Decision and Costs Order is refused. ; and

(5)    at [81] to [85]:

It is necessary to comment on the manner in which the various proceedings before the Commission have been conducted.

[Mr Patial] has prosecuted these appeals before us in a manner that is entirely different to the manner in which he conducted his first appeal against the Substantive Decision and the Substantive Order. The Form F7 – Notice of Appeal dated 27 August 2021 that was filed by [Mr Patial] when he lodged his first appeal against the Substantive Decision and the Substantive Order was primarily focussed on the Commissioner’s conclusion that he had not been in an employer/employee relationship with [Kailash] and in that proceeding, [Mr Patial] asserted there were various errors of fact in the Substantive Decision and that the Commissioner misapplied the relevant law in relation to that question. However, having not succeeded in the first appeal, [Mr Patial]’s approach has steeply descended into one of levelling accusations against the Commissioner of having either engaged in, or been complicit with bribery, corruption, perjury, evidence tampering and dishonesty during the proceedings.

There has not been a single piece of evidence produced by [Mr Patial] is (sic) support of his allegations against the Commissioner. It is therefore a matter of most serious concern that [Mr Patial] persisted in making baseless allegations before us, despite having earlier been cautioned in relation to his conduct by both the Commissioner and Deputy President O’Neill. In the Form F7 alone, he made over 50 references to “the corrupt Commissioner” and at the hearing before us, [Mr Patial] opened with the following:

“I submit that the Fair Work Commission has no evidence that McKenna C was not racist, not dishonest, not corrupt and did not take a bribe in these proceedings.”

Despite the conduct of [Mr Patial], the Commissioner has conducted herself with admirable restraint. The Commissioner’s conduct during the proceedings has been marked by her patience, commitment to ensuring both parties were afforded procedural fairness and an adherence to the impartial discharge of her duties according to law. Even after having been subjected to numerous unsubstantiated slurs from [Mr Patial], the Commissioner had the magnanimity to say:

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

Despite these previous warnings, [Mr Patial] has persisted with his allegations. Unless he is experiencing some undisclosed, underlying issues that are impacting on his professional judgement, it is inconceivable that [Mr Patial], a practising lawyer in the State of New South Wales, would consider he has conducted himself appropriately. We consider the conduct of [Mr Patial] raises serious issues of concern and intend to take the necessary steps to alert the Law Society of New South Wales in relation to these proceedings.

(italic emphasis in original; footnotes omitted)

27    On 26 July 2023, in proceeding S80/2023, Chief Justice Kiefel of the High Court of Australia delivered reasons for judgment on an application by Mr Patial for leave to file an application in that Court for a constitutional or other writ, with Kailash and the Commission as named parties: In the matter of Patial [2023] HCATrans 95.

28    In the course of those reasons, the Chief Justice stated (at lines 60 to 86):

The document seeks orders quashing the decisions of the Commission and an order for mandamus compelling the Commission to remake the decisions according to law. An order is also sought that the Federal Court hear the matter de novo and that the conduct of [Kailash] be reviewed.

[Mr Patial] alleges that the Commission had no jurisdiction in the matter; that he was denied procedural fairness; and that the finding as to the relationship of employer and employee was incorrect. The allegations are not supported by any substantial evidence and are largely unexplained.

[Mr Patial] also makes scandalous allegations, unsupported by any evidence of substance. He alleges that the Commissioner at first instance was biased, discriminated against him on the basis of his race or age, and had communications with [Kailash] to which he was not party. He alleges that [Kailash] was involved in illegal activities, committed perjury and tampered with evidence.

There is no basis for an order for remitter to the Federal Court of Australia. No application for special leave to appeal its decisions has been sought. No basis for the exercise of this Court’s original jurisdiction is shown. The claim for relief by way of mandamus is untenable and is made after [Mr Patial] invoked the jurisdiction of the Federal Court. Further and in any event, the claims rely to a significant extent on unsupported, scandalous assertions.

For those reasons the document for which [Mr Patial] seeks leave to issue or file is frivolous, vexatious and an abuse of the Court’s process.

29    On 25 August 2023, the Full Court of this Court (Rares, Jackson and Halley JJ) dismissed appeals from Patial (No 1) and Patial (No 2). Their Honours’ reasons for judgment are recorded in Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155.

30    In the course of those reasons, their Honours made the following observations:

(1)    at [29]:

Here, [Mr Patial] filed a considerable amount of material and submissions which did not engage in any substantive way in identifying an arguable claim that the primary judge erred in his finding that, in all of the circumstances, the pursuit of his claim based on there being an employment relationship was an abuse of process. ;

(2)    at [32]:

In our opinion, to allow [Mr Patial], in substance to relitigate the same issue that the Commissioner decided, as to whether or not he was an employee so as to found his claims for unfair dismissal, would expose [Kailash] to unreasonable vexation and expense… ; and

(3)    at [43]:

…The failure of [Mr Patial], as a legal practitioner, to engage with the identification of error by the primary judge and the application of any coherent legal principles to support either appeal, together with the preparation of two bundles of authorities, one by each side, of well over 1000 pages in total, was unreasonable as was the pursuit of the appeals in all of the circumstances. In those circumstances, [Mr Patial] should be ordered to pay [Kailash, Koala and Kuber’s] costs of the appeals on the ordinary party-party basis.

31    On 6 March 2024, in proceeding NSD1016/2021, I made orders dismissing Mr Patial’s application for leave to file a second iteration of his statement of claim. My reasons for doing so are recorded in Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 4) [2024] FCA 179 (Patial (No 4)).

32    In the course of those reasons, I made the following observations (at [10] to [13]):

There are several fundamental (and in some cases, recurring) flaws in the PSOC. …

The second relates to the pleading of relationships of employment. …

…Further, to the extent it is intended to plead that Mr Patial was employed by Kailash Lawyers, the pursuit of that allegation would be an abuse of process for the reasons set out in Patial (No 1) and Patial FFC.

(italic emphasis in original)

33    In August 2024, Mr Patial commenced proceedings in:

(1)    the Supreme Court of New South Wales against Kailash (Supreme Court proceeding); and

(2)    the District Court of New South Wales against Mr Pall (District Court proceeding).

34    On 5 December 2024, in proceeding C2024/8266, Deputy President Easton of the Commission dismissed an application brought by Mr Patial purportedly under ss 603 and 607 of the Fair Work Act 2009 (Cth) (FW Act) and delivered reasons which are recorded in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2024] FWC 3388.

35    In the course of those reasons, the Deputy President made the following observations:

(1)    at [1]:

In 2021 Mr Patial claimed that he had been an employee of [Kailash] and had been unfairly dismissed from his employment. Eight different members of the Fair Work Commission have rejected arguments and dismissed applications made by Mr Patial in six published decisions relating to the alleged dismissal. Many observations have been made about the unprofessional way in which Mr Patial conducted those earlier proceedings despite him having legal qualification, including observations that he had made claims and appeals that he was not entitled to make and that he had improperly attempted to use Fair Work Commission proceedings to prosecute gripes and complaints that the Commission has no jurisdiction to deal with. ;

(2)    at [2]:

The lengthy history of Mr Patial’s challenges to his alleged dismissal in the Fair Work Commission are recorded in the following decisions:

(a)    6 August 2021 – Commissioner McKenna found that Mr Patial was not an employee of [Kailash] and therefore was not a person who was dismissed: Patial v Kailash Lawyers Pty Ltd [2021] FWC 4167;

(b)    24 November 2021 – a Full Bench (Vice President Catanzariti, Deputy President Bull and Commissioner Ryan) refused permission to appeal Commissioner McKenna’s first decision: Patial v Kailas (sic) Lawyers Pty Ltd [2021] FWCFB 6055;

(c)    18 July 2022 - Commissioner McKenna found that Mr Patial was required to pay the Respondent’s costs subject to quantification: Patial v Kailash Lawyers Pty Ltd [2022] FWC 1449;

(d)    28 October 2022 – Commissioner McKenna determined the amount of costs Mr Patial was required to pay and made an order accordingly: Patial v Kailash Lawyers Pty Ltd [2022] FWC 2721;

(e)    6 December 2022 – Deputy President O’Neill dismissed Mr Patial’s application for a stay order over the Commissioner’s costs decision; and

(f)    19 April 2023 - a Full Bench (Deputy President Clancy, Deputy President Millhouse, Commissioner Harper-Greenwell) refused permission to appeal the earlier appeal decision, refused an extension of time to file Mr Patial’s appeal of the costs liability decision and refused permission to appeal the Commissioner’s costs quantification decision: Patial v Kailash Lawyers Pty Ltd [2023] FWCFB 73.

(italic emphasis in original);

(3)    at [4] to [5]:

On 20 November 2024 Mr Patial has made yet another application to the Commission in relation to his alleged dismissal in 2021 – this time an application purportedly under sections 603 and 607 of the Fair Work Act 2009 (Cth) (the Act).

For the following reasons I have decided to utilise the facility available under s.587 of the Act and dismiss Mr Patial’s application on my own initiative because the application has no reasonable prospects of success.

(bold and italic emphasis in original);

(4)    at [8]:

This submission is nonsense. Section 605 gives the Minister, and only the Minister, standing to apply to the Commission for a review. No more needs to be said about Mr Patial’s application purportedly under s.607. ;

(5)    at [26] to [27]:

On its face, Mr Patial’s application under s.603 appeared entirely hopeless and appeared to be an attempt to re-appeal decisions that Mr Patial is no longer entitled to appeal – hence the email calling on him to state a basis upon which his claim could be made under s.603.

In this context, unless Mr Patial can establish that there is a clear prima facie cause of action available to him under s.603, I am not prepared to entertain the possibility that further resources will be wasted by conducting a full hearing on this new application that otherwise appears legally hopeless. ; and

(6)    at [37]:

I am satisfied that Mr Patial’s application under s.603 and/or s.607 of the Act has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

36    On 2 January 2025, Mr Patial commenced proceeding NSD1/2025, in which he seeks judicial review of Deputy President Easton’s decision of 5 December 2024.

37    On 4 February 2025, Mr Patial commenced proceeding NSD129/2025, in which he seeks judicial review of the Commission’s costs quantification decision ([21] above).

38    On 20 February 2025, in proceeding C2024/9258, a Full Bench of the Commission (Deputy Presidents Binet and O’Keeffe and Commissioner Lim) dismissed an application by Mr Patial for permission to appeal from the decision of Deputy President Easton. The reasons of the Full Bench for doing so are recorded in Prateek Patial v Kailash Lawyers Pty Ltd [2025] FWCFB 41.

39    In the course of those reasons, the Full Bench observed at [48]:

… in the present matter, there is an additional impetus to denying [Mr Patial] access to s.603. [Mr Patial] is not merely seeking to use s.603 in lieu of the appeals process. He is instead, having utilised the appeals process to its fullest extent, is now seeking to use s.603 to subvert the outcome of that appeals process. This is in our view very much contrary to the notion of certainty in decisions of the FWC and amounts to an abuse of process.

40    On 21 February 2025, in proceeding NSD306/2024, Justice Bromwich dismissed an application for leave to appeal from Patial (No 4) ([31] above). His Honour’s reasons for doing so are recorded in Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2025] FCA 113. In the course of those reasons, Justice Bromwich made the following observations:

(1)    at [3]:

This application is solely concerned with the question of whether [Mr Patial] has made a sufficient case for the grant of leave to appeal: 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 [Mr Patial] 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. It should be noted at the outset that [Mr Patial’s] application for leave to appeal, his draft notice of appeal, and his written and, in places, oral submissions stray beyond those constraints. In part at least, [Mr Patial] apparently seeks to relitigate aspects of the history of the dispute which do not assist with the question of whether leave should be granted to appeal from the primary judge’s decision not to allow him to file a further statement of claim in the form it was presented.

(italic and bold emphasis in original) ; and

(2)    at [10] to [11]:

In all the circumstances, the application for leave to appeal was at all stages completely hopeless and doomed to fail. In my view, it should never have been brought. Accordingly, the application is dismissed.

Turning to costs, I am satisfied that this appeal proceeding was instituted without reasonable cause. I am also satisfied that the way in which it has been brought, the breadth of material that has been put in the appeal books, the width of the cases, the quality of the application for leave to appeal itself, the quality of the submissions, the quality of the submissions in reply, and a good deal of the oral submissions are such that they amounted to unreasonable acts or omissions and caused [Kailash, Koala and Kuber] to incur costs. As such, I order for [Mr Patial] to pay [Kailash, Koala and Kuber’s] costs pursuant to s 570 of the Fair Work Act 2009 (Cth), subject to any constraints imposed by the decision in Birketu Pty Ltd v Atanaskovic [2025] HCA 2.

(italic emphasis in original)

41    On the same day, in proceeding NSD571/2024, Justice Bromwich delivered reasons for judgment which are recorded in Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2025] FCA 114. That proceeding involved an application for leave to appeal from the decisions of Judge Humphreys of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) in Kailash Lawyers Pty Ltd v Patial [2024] FedCFamC2G 268; and Kailash Lawyers Pty Ltd v Patial (No 2) [2024] FedCFamC2G 269, which decisions concerned an application to enforce the Commission’s costs order; and a related application by Mr Patial for an adjournment of the hearing of that application, each of which had been determined adversely to Mr Patial by Judge Humphreys.

42    In the course of those reasons, Justice Bromwich made the following observations:

(1)    at [4]:

It should be noted at the outset that [Mr Patial’s] application for leave to appeal, his draft notice of appeal and his written and oral submissions stray beyond those constraints. Repeatedly, [Mr Patial] 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 [Mr Patial] to appeal from the two decisions challenged. ; and

(2)    at [11] to [12]:

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.

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, [Mr Patial] should pay the costs of the application, subject to any constraints expressed in Birketu Pty Ltd v Atanaskovic [2025] HCA 2.

(italic emphasis in original)

43    On 21 March 2025, in the Supreme Court proceeding, Acting Justice Schmidt of the Supreme Court of New South Wales delivered reasons for judgment which are recorded in Patial v Kailash Lawyers Pty Ltd [2025] NSWSC 219. Her Honour’s reasons for judgment addressed: (1) an application by Mr Patial to strike out a defence filed by Kailash out of time, but in accordance with leave subsequently granted by a Registrar, and for default judgment; and (2) an application by Kailash to (a) transfer the Supreme Court proceeding to this Court and (b) transfer the District Court proceeding to the Supreme Court and then to this Court.

44    Her Honour: (1) dismissed Mr Patial’s application and ordered that he pay Kailash’s costs on the indemnity basis; and (2) made the orders sought by Kailash for the transfer of the Supreme Court proceeding and the District Court proceeding to this Court.

45    Those proceedings, as transferred, became proceedings NSD491/2025 and NSD468/2025 respectively in this Court.

46    In the course of her reasons for judgment, Acting Justice Schmidt made the following observations:

(1)    at [2] to [4]:

In these proceedings Mr Patial contends that the agreement was a sham and that he was an employee. He seeks to have the agreement set aside, as well as various other relief, including damages for professional negligence.

This is pursued despite Mr Patial having already unsuccessfully brought proceedings in the Fair Work Commission in which he also claimed that he had been an employee, relying on various documents in which Mr Pall had so described him: Patial v Kailash Lawyers Pty Ltd [2021] FWC 4167. Mr Patial’s application for leave appeal against that decision also failed: Patial v Kailash Lawyers Pty Ltd [2021] FWCFB 6055.

Since then, Mr Patial has also brought other proceedings in the Federal Court, the High Court, this Court and the District Court arising out of the agreement and its termination.

(italic emphasis in original);

(2)    at [28]:

… it cannot be accepted that in these proceedings, Mr Patial does not seek to pursue claims which he also pursues in the Federal Court. There is certainly significant overlap between his amended statement of claim and what he has to date unsuccessfully advanced in the Fair Work Commission, in the Federal Court and the High Court.;

(3)    at [36] to [38]:

Once leave to file the defence was given, Mr Patial ought not to have pursued his motion as he did, given the obligations imposed on parties by s 56 of the Civil Procedure Act. Namely, to assist the Court to facilitate the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

The defence having been filed in accordance with leave given by the Registrar, the result was that [Kailash] was no longer in default: r 16.2(2)(c) UCPR discussed in Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis [2023] NSWSC 128 at [54].

Given not only how [Kailash] seeks to defend Mr Patial’s claims, relying on decisions which bind the parties, but that he has already filed a reply to that defence, I am well satisfied that the defence cannot justly now be struck out, or default judgment entered, as Mr Patial pressed.

(italic emphasis in original);

(4)    at [45]:

But it must be noted that it is Mr Patial who is legally trained, who has not accepted that he is not entitled in the State proceedings to further pursue his claimed employment, despite decisions to the contrary, by which he is bound.;

(5)    at [48]:

That Mr Patial still does not accept that he is not entitled to further pursue his claimed employment is in my view not a proper basis for this Court refusing to make the transfer order, if it is otherwise warranted.;

(6)    at [70]:

In those circumstances, it is difficult to see how Mr Patial is now entitled to pursue any claim in the State proceedings on the basis that he was an employee of [Kailash]. Or how he can rely on documents which were in evidence in the Fair Work Commission, which were not accepted as establishing his claim that he was an employee. But that is the course he has continued to pursue, including now it appears, by the further judicial review proceedings he brought in the Federal Court in 2025.; and

(7)    at [80]:

…[I]t must be accepted that many of the claims which he advances in the State proceedings advance the same or similar claims to those which he pursues in the proceedings on foot in the Federal Court. They all arise out of the same substratum of facts.

47    Her Honour observed, in the course of considering the question of costs of Mr Patial’s application to strike out Kailash’s defence at [131] to [136]:

But costs were sought on an indemnity basis for the default judgment motion, payable forthwith, Mr Patial not having withdrawn that motion as he ought to have, despite being on notice that his claims would be defended. Even after leave to file the defence was given, in circumstances which meant that his motion was doomed to fail.

Mr Patial did not address those submissions, but I take him to oppose them.

Still I am satisfied that consistent with the obligations imposed on the parties by s 56, as I explained, Mr Patial ought not to have pursued his motion. That is because it was unarguably doomed to fail, given the course which the proceedings had taken and the provision which the Rules make as to default, once a defence is filed as it was with leave, as I earlier explained.

In those circumstances I am satisfied that justice does require that costs of Mr Patial’s motion be ordered on an indemnity basis.

The exercise of that power typically depends on misconduct in the proceedings being established: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69]. Indemnity costs can be ordered to compensate the successful party where it was unreasonable for the unsuccessful party to have subjected the successful party to the costs incurred and where there was relevant delinquency: Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6].

Given all that I earlier explained, I am satisfied that this is such a case. Mr Patial having pursued his motion as he did despite what the Rules provided and the leave the Registrar gave to file the defence. But I am not satisfied that a basis has been established for those costs to be payable forthwith. Nothing advanced was addressed to this issue or established a proper basis for such an order.

(italic emphasis in original)

48    On 4 August 2025, I dismissed applications brought by Mr Patial to wind up Kailash, Koala, Kuber and Kailasam Holdings Pty Ltd (another company of which Mr Pall is the sole director) on the basis of statutory demands for debts in respect of which there was plainly a genuine dispute. My reasons for doing so were published as Kailash Lawyers Pty Ltd (ACN 604 582 550) v Patial [2025] FCA 884; (2025) 176 ACSR 315.

49    In those reasons, I stated at 363 [176] and 364 ([182] to [184]):

In the present case, I infer that the demands were served not for the purpose of winding up the companies on the ground of insolvency, but rather in order to apply pressure for the payment of debts in respect of which Mr Patial was plainly on notice of a genuine dispute. Such an inference arises from Mr Patial’s service of the demands despite his knowledge of the following matters:

(1)    Mr Patial’s assertions of amounts due to him from the companies for services performed during the Agreement period in the first and second iterations of the statement of claim in proceeding NSD1016/2021 and the resistance to such claims in that proceeding;

(2)    the absence of any written shared services agreement and the absence of any evidence of an oral shared services agreement;

(3)    the hourly rate — being a rate allegedly applicable during the finite Agreement period — being increased in documents created subsequently by Mr Patial;

(4)    the absence of evidence of any invoices rendered to Koala, Kuber and Kailasam for work done during the Agreement period (which ended in August 2020) until 20 May 2025 (which as noted above is some four and one-half years later);

(5)    the correspondence from the companies indicating that there was a genuine dispute ([17] and [40] above); and

(6)    the hard-fought proceedings NSD1016/2021.

…

Mr Patial made several submissions which I have not addressed. I consider it unnecessary to burden these already lengthy reasons for judgment with a refutation of points which are irrelevant or which are covered by the non-acceptance of other submissions which have been addressed.

However, it would be remiss not to mention that Mr Patial has made a series of allegations of misconduct against Mr Pall in this proceeding and has suggested that Mr Pall has contravened the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). Such contraventions are said to flow from matters of fact which it has been unnecessary to determine but which on their face appear incapable of supporting allegations of such gravity. The peripheral relevance of the facts said to support those ad hominem attacks is demonstrated by Mr Patial’s decision not to seek to cross-examine Mr Pall despite foreshadowing an application to do so.

Regrettably, this is not the first occasion on which this has happened: see Patial (No 1) at [61] to [62].

(italic emphasis in original)

50    At 364 [185] and 365 to 366 [188], I stated:

The companies seek an order for the payment of their costs on an indemnity basis, on the basis that the position that Mr Patial took in each proceeding was hopeless and doomed to fail. It is well-established that the commencement or continuation of proceedings that are doomed to fail may provide a basis for an award of costs on an indemnity basis: see, eg, Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; 118 ALR 248 at 257; 8 IPR 561 at 570 (Sheppard J).

…

I am satisfied that indemnity costs orders are appropriate in each of the present proceedings because:

(1)     the existence of a genuine dispute was pellucid;

(2)     Mr Patial was put on notice that his position that the NSD970/2025 originating application was non-compliant was contrary to authority and that the service of the demands was an abuse of process ([40], [55] and [75] above);

(3)     Mr Patial’s position that service had not been effected despite his own evidence that he had received the originating documents within the statutory period was, as noted above, devoid of merit;

(4)     as noted above, Mr Patial’s service of the demands and his commencement of the winding up proceedings in the face of his knowledge of the existence of a genuine dispute was an abuse of process; and

(5)     by dint of the above positions, and steps, that were taken by Mr Patial, the companies were subjected to costs of litigation that ought never have been necessary to commence (in the case of proceeding NSD970/2025) or to defend (in the case of the winding up proceedings).

(italic emphasis in original)

51    On 2 September 2025, Mr Patial lodged appeals against each of four sets of orders made dismissing his winding up applications (proceedings NSD1553/2025, NSD1554/2025, NSD1555/2025, NSD1556/2025 and NSD1557/2025).

52    On 5 September 2025, Judge Obradovic of the FCFCOA made a sequestration order under the Bankruptcy Act 1966 (Cth) against Mr Patial’s estate.

53    On 25 September 2025, Mr Patial filed a notice of appeal from the sequestration order (proceeding NSD1764/2025).

54    On 13 March 2026, I dismissed an application by Mr Patial for a stay of the operation of the sequestration order pending the determination of Mr Patial’s appeal: Patial v Kailash Lawyers Pty Ltd [2026] FCA 268.

55    On 11 May 2026, I dismissed Mr Patial’s appeal from the sequestration order: Patial v Kailash Lawyers Pty Ltd (No 2) [2026] FCA 597.

C.    The procedural history of the present application

56    Before addressing the present application, it is necessary to set out some of the procedural history.

C.1    Background

57    The present application has its genesis in proceeding NSD1016/2021.

58    On 15 July 2025, the present applicants filed in that proceeding an interlocutory application (NSD1016/2021 s 37AO application) seeking, inter alia, an order pursuant to s 37AO of the FCA Act that Mr Patial not initiate or continue any proceeding in this Court.

59    On 18 July 2025, the NSD1016/2021 s 37AO application was set down for hearing on 3 September 2025 and a timetable was set for the parties to file and serve evidence and written submissions.

60    On 22 August 2025, the present applicants filed written submissions in which they identified a series of proceedings that Mr Patial had commenced against them, and submitted that many of these proceedings, or applications within them had been deemed vexatious, an abuse of process, or doomed to fail.

61    On 29 August 2025, Mr Patial filed written submissions, inter alia, denying that he had acted in a vexatious manner. Those submissions also sought to re-agitate his grievances concerning the conduct of Mr Pall and the related question of whether Mr Patial had been an employee of Kailash.

62    On 3 September 2025, the hearing of the NSD1016/2021 s 37AO application commenced. The evidence of each of the parties was read and counsel for the present applicants completed his oral submissions. The application was then adjourned part heard. The adjournment was necessary for two reasons. First, most of the hearing time on that day was devoted to the hearing of applications in other proceedings between Mr Patial and the present applicants which had been scheduled to be heard on 2 September 2025 but which could not be heard on that day because Mr Patial failed to appear. Secondly, I indicated during the course of oral submissions that the Court would be assisted by the provision of submissions addressing three recent decisions of the Full Court of this Court, namely Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; (2024) 304 FCR 318 (Lee, Feutrill and Jackman JJ), Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157 (Cheeseman, Goodman and McEvoy JJ) and Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103 (Rofe, Hespe and Kennett JJ), which had not been addressed in the written submissions filed by the parties in advance of the hearing.

63    On that day, orders were made for the parties to provide short written submissions concerning the three above-mentioned Full Court decisions. The orders included a notation that the remainder of the NSD1016/2021 s 37AO application would be heard on 15 October 2025.

64    On 5 September 2025, as noted above, a sequestration order was made against Mr Patial’s estate.

65    On 15 September 2025 in proceeding NSD1016/2021, I noted the making of the sequestration order and made an order allowing the parties and Mr Patial’s trustee in bankruptcy to file by 1 October 2025 written submissions concerning the effect, if any, of the sequestration order and s 60 of the Bankruptcy Act upon the NSD1016/2021 s 37AO application. On the same day, I vacated various orders concerning aspects of this and other proceedings involving Mr Patial in my docket – namely NSD1/2025, NSD129/2025, NSD468/2025 and NSD 491/2025 – but left in place the orders that had been made on 3 September 2025 in relation to the NSD1016/2021 s 37AO application, including the notations made on that date that the remainder of the NSD1016/2021 s 37AO application would be heard on 15 October 2025.

66    Subsequently:

(1)    the present applicants filed submissions as to the effect of s 60 of the Bankruptcy Act on the NSD1016/2021 s 37AO application. Their primary position was that the NSD1016/2021 s 37AO application was unaffected. They also submitted that in any event, by virtue of s 23 of the FCA Act and r 1.32 of the Federal Court Rules 2011 (Cth), and the Court’s inherent jurisdiction to control its own processes, the Court could, if it was so minded:

(a)    order that the present applicants file a fresh originating application seeking relief under s 37AO;

(b)    order that the evidence and submissions made on the NSD1016/2021 s 37AO application, be taken as evidence and submissions in the fresh proceeding;

(c)    proceed to hear the application and give judgment in the fresh proceeding;

(2)    the Official Trustee in Bankruptcy filed submissions setting out their position that the NSD1016/2021 s 37AO application was not affected by s 60 of the Bankruptcy Act and could proceed; and

(3)    Mr Patial filed written submissions in which he submitted that the NSD1016/2021 s 37AO application was stayed by dint of the operation of s 60 of the Bankruptcy Act, but that the present applicants could pursue relief under s 37AO of the FCA Act by: (a) seeking leave to continue the NSD1016/2021 s 37AO application in proceeding NSD1016/2021; or (b) commencing a fresh proceeding to seek such relief.

67    On 15 October 2025, the hearing of the NSD1016/2021 s 37AO application resumed. Mr Patial did not appear. The present applicants foreshadowed the commencement of a fresh proceeding in which to prosecute an application for a vexatious proceedings order.

68    The following orders were made:

1.    [Mr Patial] has leave to file and serve by 29 October 2025 written submissions of no more than 10 pages in response to the oral submissions-in-chief made by Counsel for [the present applicants] on 3 September 2025 concerning [the present applicants’] application under s 37AO of the Federal Court of Australia Act 1976 (Cth) (s 37AO application).

2.    [The present applicants] may reply to [Mr Patial’s] further submissions with written submissions of no more than five (5) pages by 5 November 2025.

3.    From 6 November 2025, judgment on the s 37AO application be reserved.

4.    Costs of today be reserved.

THE COURT NOTES THAT:

1.    [Mr Patial] did not appear at the hearing today.

2.    [The present applicants propose] to file a fresh proceeding for the purposes of seeking orders under s 37AO.

3.    Subject to any contrary direction made by a judge to whom that fresh proceeding is allocated, the first case management hearing in that proceeding be conducted by way of video conference.

4.     [The present applicants have] foreshadowed that [they] will seek orders at that first case management hearing to the effect that the events in this proceeding which concern the s 37AO application (e.g. evidence read and submissions made) are to be treated as events occurring in the fresh proceeding.

(bold and italic emphasis in original)

69    Mr Patial subsequently requested that proceeding NSD1016/2021 be relisted and it was relisted on 29 October 2025.

70    On 29 October 2025, I made the following orders in proceeding NSD1016/2021:

1.    The time for compliance with order 1 made on 15 October 2025 be extended to 20 November 2025, and such submissions may include a response to [the present applicants’] written submissions dated 1 October 2025.

2.    The time for compliance with order 2 made on 15 October 2025 be extended to 27 November 2025.

3.    The date in order 3 made on 15 October 2025 be amended to 28 November 2025.

4.    Costs of today be reserved.

(bold emphasis in original)

71    On 17 November 2025, Kailash commenced the present proceeding. As previously noted, the relief sought is a vexatious proceedings order under s 37AO of the FCA Act.

72    On 21 November 2025, Mr Patial filed and served submissions in proceeding NSD1016/2021:

(1)    concerning the proceeding NSD1016/2021 s 37AO application. In those submissions, Mr Patial contended that the s 37AO application should be dismissed for various reasons, including because of the alleged conduct of the present applicants and their legal representatives; and

(2)    in support of a stay of the NSD1016/2021 s 37AO application. Again, Mr Patial submitted that the NSD1016/2021 s 37AO application was stayed by dint of the operation of s 60 of the Bankruptcy Act but that the present applicants could seek such relief by: (a) seeking leave to proceed in proceeding NSD1016/2021; or (b) commencing a fresh proceeding.

73    On 21 November 2025, the present proceeding was set down for a case management hearing on 11 December 2025.

74    On 26 November 2025, the present applicants filed submissions in reply to Mr Patial’s submissions dated 21 November 2025 in proceeding NSD1016/2021. The submission included:

The fresh 37AO proceeding matter is listed for Directions on 11 December 2025, at which time, orders will be sought to have the evidence read and submissions made in the current motion into the fresh proceeding. [The present applicants] repeat their argument made in their supplementary submissions that the motion seeking orders under s 37AO is not stayed, however say that moving the motion across to a fresh proceeding ameliorates any issue regarding the motion for orders under s 37AO being stayed in any event. This course of action was noted in the orders made on 15 October 2025.

75    From 28 November 2025, judgment was reserved on the NSD1016/2021 s 37AO application.

76    On 8 December 2025, Mr Patial sent an email to my Associate and the solicitor for the present applicants which included:

I write respectfully in relation to the Case Management Hearing listed on 11 December 2025 in the above matter, NSD2114/2025.

Due to unforeseen personal circumstances involving a family emergency, I am presently overseas and regrettably unable to attend the hearing in person or by electronic means. The location I am currently in suffers from unreliable internet access and a time difference of 5 hours and 30 minutes, which significantly impairs timely and effective communication.

Accordingly, I respectfully request that the Court adjourn the scheduled hearing. I undertake to notify the Court upon my return to Australia and will liaise with all parties to identify a mutually convenient date for the matter to be re-listed.

…

77    On 11 December 2025, I conducted the first case management hearing in this proceeding. Mr Patial did not attend. On that day, the following orders were made:

1.    By 19 December 2025, the applicants file submissions of no more than five (5) pages addressing the question whether the events in proceeding NSD1016/2021 which concern the s 37AO application in that proceeding (e.g. evidence read and submissions made) should be treated as events occurring in this proceeding.

2.    By 16 January 2026, [Mr Patial] file any submissions of no more than five (5) pages in response.

3.    By 29 January 2026, the applicants file any submissions in reply of no more than two (2) pages.

4.    The proceeding be listed for further case management at 9:30am on 5 February 2026.

5.    Liberty to apply on three (3) days’ notice.

(bold emphasis in original)

78    On 17 December 2025, the applicants filed written submissions in accordance with the first order made on 11 December 2025, addressing the question whether the events in proceeding NSD1016/2021 which concern the s 37AO application in that proceeding should be treated as events occurring in this proceeding.

79    On 31 December 2025, Mr Patial filed an interlocutory application seeking the following orders:

1.    That the orders made by the Honourable Justice Goodman on 11 December 2025 be set aside, pursuant to rule 1.32 and/or rule 39.05 of the Federal Court Rules 2011 (Cth), on the basis that they were made in the absence of [Mr Patial] who had notified the Court in advance of his inability to attend due to a genuine family emergency and practical constraints.

2.    That [Mr Patial] be granted leave to file and serve a Defence in proceeding NSD2114/2025 on or before 19 March 2026, in accordance with rule 16.32 of the Federal Court Rules 2011 (Cth), or such other date as the Court considers appropriate.

3.    That [Mr Patial] be granted leave to file an interlocutory application seeking to strike out or dismiss the Applicant’s Originating Application in NSD2114/2025 on the grounds of abuse of process, in light of the substantial duplication between the present proceeding and the extant vexatious proceedings application in matter NSD1016/2021.

(italic emphasis in original)

80    That interlocutory application was supported by an affidavit made by Mr Patial on 29 December 2025 in which Mr Patial indicated that he was in India because of a family emergency and anticipated returning to Australia in mid-February 2026.

81    Mr Patial did not file submissions by 16 January 2026 (as had been ordered on 11 December 2025).

82    On 5 February 2026, a further case management hearing was held. Mr Patial did not attend. The following orders were made:

THE COURT ORDERS THAT:

1.    By 25 February 2026, [Mr Patial] file and serve a written outline of submissions, limited to five (5) pages addressing:

a.    the applicants’ submissions filed on 16 December 2025; and

b.    [Mr Patial’s] interlocutory application.

2.    By 4 March 2026, the applicants file and serve any reply to the submissions referred to in the previous order, limited to three (3) pages.

3.    The proceeding be listed at 10:15am on 11 March 2026 for determination of:

a.    the question whether the events in proceeding NSD 1016/2021 which concern the s 37AO application in that proceeding (e.g. evidence read and submissions made) should be treated as events occurring in this proceeding; and

b.    [Mr Patial’s] interlocutory application.

…

(bold emphasis in original)

83    Mr Patial did not file a written outline of submissions by 25 February 2026 (or at all), despite the order made on 5 February 2026.

84    On 9 March 2026, Mr Patial made a further affidavit, which was filed on 11 March 2026.

85    On 11 March 2026, I heard: (1) the 31 December 2025 interlocutory application; and (2) the question whether the events in proceeding NSD1016/2021 which concern the NSD1016/2021 s 37AO application should be treated as events occurring in this proceeding.

86    Mr Patial appeared at that hearing and made oral submissions.

C.2    31 December 2025 interlocutory application

87    I turn now to Mr Patial’s 31 December 2025 interlocutory application ([79] above).

88    The first order sought is an order setting aside the 11 December 2025 orders on the basis that those orders were made in the absence of Mr Patial who had advised the Court of his inability to attend because he would be in India.

89    I am not minded to make such an order, as:

(1)    Mr Patial’s request that the proceeding essentially be put on hold until a time convenient to him was unacceptable particularly in the absence of any detailed evidence as to why he was in India and how long he proposed to remain there;

(2)    Mr Patial was afforded procedural fairness with respect to the making of submissions with respect to the s 37AO application in the present proceeding as:

(a)    the 11 December 2025 order allowed Mr Patial a period of five weeks in which to file submissions of no more than five pages, including four weeks from receipt of the present applicants’ submissions;

(b)    on 5 February 2026, the time for Mr Patial to file those submissions was extended further, to 25 February 2026; and

(c)    Mr Patial appeared at the hearing on 11 March 2026 (ahead of which he prepared a further affidavit) and made submissions.

90    Although Mr Patial did not file written submissions as ordered, it is plain that he had sufficient opportunity to do so. Notably, Mr Patial was able to prepare and file his 31 December 2025 interlocutory application as well as his affidavits of 29 December 2025 and 9 March 2026. Further, in view of the conclusion reached below with respect to the application to treat events relating to the NSD1016/2021 s 37AO application as events in this proceeding, the written submissions filed by Mr Patial in proceeding NSD1016/2021 ([61] and [72] above) have been taken into account.

91    The second order sought by Mr Patial is an order that he have leave to serve a defence in this proceeding.

92    Mr Patial provided no sound basis for the filing of a defence in this proceeding. No statement of claim has been filed and no application for the proceeding to continue on pleadings has been filed: cf. rr 16.31 and 16.32 of the Rules.

93    It follows that no such order should be made.

94    The third order sought by Mr Patial is an order that he be granted leave to file an interlocutory application to strike out or dismiss the originating application in this proceeding as an abuse of process.

95    The essence of Mr Patial’s submissions in support of this order is his contention that it is an abuse of process for the applicants to seek the same relief against him – i.e. an order pursuant to s 37AO of the FCA Act – in two separate proceedings.

96    I accept that if the applicants were seeking the same relief against Mr Patial in two separate proceedings, then this might amount to an abuse of process. However, the foreshadowed interlocutory application is unnecessary in circumstances where the issue of whether the applicants are engaging in an abuse of process falls squarely for consideration in the present application. Mr Patial has made submissions to this effect on the application, which submissions are addressed below. Thus, making the third order sought by Mr Patial would be contrary to the requirement s 37M of the FCA Act of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

97    It follows that Mr Patial’s interlocutory application filed on 31 December 2025 must be dismissed.

C.3    Application to treat events in proceeding NSD1016/2021 concerning the NSD1016/2021 s 37AO application as events occurring in this proceeding

98    I turn now to the applicants’ application to have the events in proceeding NSD1016/2021 concerning the NSD1016/2021 s 37AO application treated as events occurring in this proceeding. As previously noted, those events included the reading of evidence from all parties, the making of submissions and the reservation of judgment. The only remaining matter was the delivery of judgment.

99    The Court has the power to make the order sought, including under s 23 of the FCA Act and r 1.32 of the Rules.

100    I am satisfied that it is appropriate to make the orders sought for the following reasons.

101    First, I am unpersuaded that the applicants are engaging in any abuse of process by seeking a vexatious proceedings order in the present proceeding. In particular:

(1)    the advantage sought by the applicants in the present proceeding – being the making of a vexatious proceeding order – is an advantage for which the law provides; and

(2)    although it is prima facie an abuse of process to commence a second proceeding on the same subject matter where the remedy sought in the second proceeding is obtainable in the first proceeding, Mr Pall, who as noted earlier is the sole director of Kailash, Koala and Kuber has proffered an undertaking, on behalf of those companies, not to pursue the relief sought under s 37AO of the FCA Act in proceeding NSD1016/2021 and the present proceeding concurrently.

102    In those circumstances, there is no abuse of process: see Morningstar Research Pty Ltd v Fiduciary Ltd [2003] FCA 870; (2003) 131 FCR 236 (Hely J).

103    Secondly, contrary to Mr Patial’s submissions, the undertaking proffered is sufficient to satisfy the Court that relief under s 37AO of the FCA Act will not be sought concurrently in both proceedings; and it is not necessary for the applicants first to file an amended interlocutory application in proceeding NSD1016/2021 in which the claim for that relief has been deleted.

104    Thirdly, it is plain that the second proceeding has been necessary in order to avoid the potential controversy as to whether the NSD1016/2021 s 37AO application has been stayed by reason of Mr Patial’s bankruptcy, an issue which arose subsequent to the filing of the NSD1016/2021 s 37AO application.

105    Fourthly, Mr Patial in his written submissions identified that the commencement of a fresh proceeding was a course open to the present applicants ([66(3)] and [72(2)] above).

106    Fifthly, in light of the undertaking, there is no prejudice to Mr Patial in the Court treating the events in proceeding NSD1016/2021 concerning the NSD1016/2021 s 37AO application as events occurring in this proceeding. Mr Patial has had ample opportunity to adduce such evidence and make such submissions as he wished on the question of whether a s 37AO order ought be made, and he has done so.

107    Finally, the making of the order sought is consistent with the over-arching purpose in s 37M of the FCA Act.

D.    Consideration

108    I turn now to consider whether the s 37AO order sought by the applicants should be made.

D.1    Legislative framework

109    Section 37AO of the FCA Act provides in so far as is presently relevant:

37AO    Making vexatious proceedings orders

(1)     This section applies if the Court is satisfied:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals;

…

(2)     The Court may make any or all of the following orders:

(a)     an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)     an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)     any other order the Court considers appropriate in relation to the person.

(3)     The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

…

(c)     a person against whom another person has instituted or conducted a vexatious proceeding;

…

(4)     The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)     An order made under paragraph (2)(a) or (b) is a final order.

(6)     For the purposes of subsection (1), the Court may have regard to:

(a)     proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)     orders made by any Australian court or tribunal; and

(c)     the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

(bold emphasis in original)

110    The following terms used in s 37AO are defined in s 37AM of the FCA Act:

37AM    Definitions

(1)     In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)     for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)     for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)     for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)     for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding:

(a)     in relation to a court—has the meaning given by section 4;

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

…

vexatious proceeding includes:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)     a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)     a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)     a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

(bold and italic emphasis in original)

D.2    Does s 37AO of the FCA Act apply?

111    There is a threshold question as to whether s 37AO applies. The applicants rely upon s 37AO(1)(a). For s 37AO(1)(a) to apply, the Court must be satisfied, relevantly, that Mr Patial “has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”.

112    The four cumulative conditions necessary to engage the operation of s 37AO(1)(a) are that a person (here, Mr Patial) has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; and (4) in Australian courts or tribunals: see Storry at 324 [20]; Ferdinands at [18].

113    It is convenient to:

(1)    first identify the “proceedings” which the applicants contend have been frequently instituted or conducted in Australian courts or tribunals in a manner which satisfies the definition of “vexatious proceeding”;

(2)    then consider whether such proceedings are proceedings in an Australian court or tribunal;

(3)    then address whether such proceedings are “vexatious proceedings” within that term as defined; and

(4)    finally, consider whether Mr Patial has frequently instituted or conducted such proceedings.

D.2.1    Proceedings

114    “Proceeding” is defined in relation to:

(1)    courts as having the meaning given by s 4 of the FCA Act. That section provides:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

(bold and italic emphasis in original) ; and

(2)    tribunals (such as the Commission) as:

in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding

115    The definition of “proceeding” is expressed in terms which include interlocutory applications: see Storry at 324 to 325 ([24]) and Ferdinands at [13] (and the authorities there cited).

116    The applicants rely upon the proceedings listed in the Schedule (identified proceedings) to these reasons for judgment as constituting “proceedings”.

117    I am satisfied that each of the identified proceedings is a “proceeding” for the purposes of the FCA Act.

D.2.2    Proceedings in Australian courts or tribunals

118    It is plain that each of the identified proceedings is a proceeding in an Australian court or tribunal.

D.2.3    Vexatious proceedings

119    I turn now to consider whether the identified proceedings are vexatious proceedings.

120    The (non-exhaustive) definition of “vexatious proceedings” in s 37AM of the FCA Act is set out at [110] above.

121    As explained by the Full Court in Ferdinands at [31], in determining whether Mr Patial commenced or conducted proceedings which were vexatious:

…the Court is not required to make findings about the facts in issue but rather, to take account of the record and make an assessment as to its character… Section 91 of the Evidence Act 1995 (Cth), which provides that evidence of a decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding, does not preclude this Court from relying on the orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged).

(italic emphasis in original)

122    In this regard, the table below provides an overview of the paragraphs of the various reasons for decision and reasons for judgment in the identified proceedings which allow the conclusion to be drawn that Mr Patial has engaged in “vexatious proceedings”.

123    Mr Patial has been held to have engaged in abuses of process in: (1) pursuing in this Court a case based on the premise that Mr Patial was an employee of Kailash (proceedings 3 and 5); (2) filing an application in the High Court of Australia for leave to file an application for a constitutional or other writ (proceeding 9); (3) seeking to use s 603 of the FW Act to subvert the outcome of the appeals process in the Commission (proceeding 13); and (4) serving statutory demands and commencing winding up proceedings based upon those statutory demands in circumstances where he was well aware that there was a genuine dispute as to the debts described in the statutory demands (proceeding 17). Further, Mr Patial has sought to propound subsequent pleadings which include the premise that he was an employee of Kailash despite the propounding of such pleadings being an abuse of process (proceeding 11).

124    The reasons for decision and reasons for judgment in the identified proceedings are also replete with references to conduct of Mr Patial which was unreasonable, including the pursuit of irrelevant matters and hopeless cases.

125    Examples of the pursuit of irrelevant matters may be found in the reasons published in proceedings numbered 1, 4, 6, 10, 12, 14, 15 and 17.

126    As to the pursuit of hopeless cases, Mr Patial was found to have: (1) “no arguable case” in proceeding 7; (2) “no reasonably arguable case of error”, “no reasonable prospect of obtaining permission to appeal” and no ground of appeal that was reasonably arguable in proceeding 8; (3) acted unreasonably in pursuing the appeal in proceeding 10; (4) an “entirely hopeless” and “legally hopeless” case that had “no reasonable prospects of success” in proceeding 12; (5) an application for leave to appeal that “was at all stages completely hopeless and doomed to fail” and which “should never have been brought” in proceeding 14; (6) an application for leave to appeal that was “doomed from the outset” and “never had any prospect of success” in proceeding 15; and (7) an application in proceeding 16 that was “unarguably doomed to fail” and which should have been withdrawn, consistent with Mr Patial’s obligations under s 56 of the Civil Procedure Act 2005 (NSW).

127    Mr Patial has also repeatedly made grave allegations as to the integrity of the applicants’ legal representatives and Commissioner McKenna, none of which has been made good. For example, Mr Patial has alleged that: (1) Kailash and its representatives bribed Commissioner McKenna, colluded with her, committed perjury, tampered with evidence, deployed their race to achieve an advantage; and (2) Commissioner McKenna was corrupt, racist, biased and a “Nazi”.

128    Various of the allegations made by Mr Patial have been described as: (1) “grave” (proceeding 3); (2) “advanced… repeatedly, and in notably vitriolic ways” and “repeated allegations of a most serious nature, without anything in support of those allegations” (proceeding 4); (3) “contumelious” (proceeding 6); (4) “highly offensive accusations” , “made without proper basis”, “made without proper foundation”, “inexcusable” and “offensive and entirely unfounded” (proceeding 7); (5) “entirely baseless”, and having been advanced without “a single piece of evidence” in support and “numerous unsubstantiated slurs” (proceeding 8); (6) “scandalous allegations, unsupported by any evidence of substance” and “unsupported, scandalous assertions” (proceeding 9); (7) repeated “scandalous allegations…without any coherent or proper basis” (proceeding 10); and (8) based upon matters which were “incapable of supporting allegations of such gravity” and “ad hominem attacks” (proceeding 17).

129    Finally, Mr Patial was found to have engaged in vexatious conduct in proceeding 3 (at [63]), proceeding 4 (at [67] and [106]) and in proceeding 9 (at lines 85 to 86).

130    Taking all of these matters into account, I am comfortably satisfied that Mr Patial has conducted proceedings in a manner that satisfies the definition of “vexatious proceeding”.

D.2.4    Frequency

131    In Storry at 346 [66], the Full Court explained:

... The meaning of the word “frequently” is relative, and must be viewed in context: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (at [46]-[49] per Beazley P, Emmett JA and Sackville AJA) and the number of proceedings may be small if a litigant attempts to re-litigate or re-agitate issues previously determined: Fuller v Toms (at [33]-[34]). ...

(italic emphasis in original)

132    For the reasons set out in D.2.3, I am satisfied that Mr Patial has frequently instituted or conducted vexatious proceedings.

D.3    Should a vexatious proceedings order be made?

133    Thus, s 37AO(1)(a) is satisfied, with the consequence that s 37AO applies.

134    Further, as is required by:

(1)    s 37AO(3), the application has been brought by persons named in that sub-section, being relevantly persons against whom Mr Patial has conducted vexatious proceedings (i.e. the applicants); and

(2)    s 37AO(4), Mr Patial has been heard on this application.

135    It follows that the discretion to make a vexatious proceedings order has been enlivened.

136    In the exercise of that discretion, I bear in mind that:

(1)    the purpose of a vexatious proceedings order is protective (and not punitive). It is to be made so as to protect other parties and potential parties to proceedings, the Court and other litigants from the effects of vexatious conduct; and

(2)    a vexatious proceedings order is an extreme measure, albeit that the Court should not be timid in making such an order when it is required: see Storry at 323 to 324 ([18]) and 347 ([71]); Ferdinands at [16] to [17].

137    Nevertheless, in view of the history of the litigation set out above, this is a clear case in which a vexatious proceedings order is warranted, for the protection of the present applicants. Such an order is also necessary to protect other potential parties to proceedings that Mr Patial might commence. Further, it is appropriate to safeguard the Court’s finite resources and ensure they are available to other litigants. As the Full Court in Ferdinands noted at [49], the Court is entitled to protect its own processes and procedures. In this case, as in Ferdinands, the drain on public resources as a result of Mr Patial’s repeated forays in this Court (and the Commission) has been significant and it is inappropriate to allow Mr Patial to continue to litigate in the manner that he has to date, without the prior leave of the Court.

138    I have taken into account the limitations imposed by the Bankruptcy Act upon the commencement and continuation of proceedings by Mr Patial during his bankruptcy. However, I do not regard this as a reason not to make the vexatious proceedings order.

E.    Conclusion

139    For the foregoing reasons: (1) Mr Patial’s interlocutory application filed on 31 December 2025 must be dismissed; (2) the events in proceeding NSD1016/2021 concerning the NSD1016/2021 s 37AO application are to be treated as events occurring in the present proceeding; and (3) the vexatious proceedings order should be made. There appears to be no reason why costs should not follow the event. I will make orders accordingly.

Associate:

Dated:    24 September 2026

SCHEDULE