DECISION

Fair Work Act 2009
s.604—Appeal of decision

Leon Wolff
v
Queensland University of Technology
(C2021/6370) (C2021/6815) (C2021/6818)

Application for stay of matters C2021/4098, C2021/6370, C2021/6815 and C2021/6818 – stay refused.

[1] On 15 July 2021 Mr Leon Wolff (the Appellant) applied to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Appellant alleged that he was dismissed by Queensland University of Technology (the Respondent) in contravention of the General Protection provisions of the Act. The Appellant alleged that the Respondent had taken adverse action against him as a result of three public interest disclosures he made under the Public Interest Disclosure Act 2010 (Qld) (the PID Act).

[2] In his Form F8 – General protections application involving dismissal, the Appellant alleged that in response to his public interest disclosures, the Respondent engaged in a “criminal reprisal” against him which violated his immunity under the PID Act. It should be noted that the Appellant had previously brought a s 365 application which was assigned matter number C2019/5671. This matter was discontinued by a deed of release, which the Appellant now alleges was made under duress. The Appellant is purporting to “re-open” matter C2019/5671 by bringing the current s 365 application.

[3] The nature of proceedings currently before the Commission are complex. A number of appeals have been filed by the Appellant, one of which was discontinued. We will briefly outline the matters that were brought and are still currently on foot before the Commission.

Procedural History

[4] As aforementioned, Mr Wolff brought an application, under s 365, for the Fair Work Commission to deal with a dismissal dispute (the General Protections Application). This application was assigned matter number C2021/4098 and is currently still on foot before Deputy President Lake.

[5] On 31 August 2021, the Appellant applied to the Commission for the referral of a question of law to the Federal Court under s 608 of the Act (the Referral Application). Pursuant to ss 582 and 584 of the Act, the President of the Commission delegated to Deputy President Colman his functions and powers under s 608. Accordingly, Deputy President Colman dealt with the Referral Application.

[6] On 7 September 2021, the parties attended a mention before Deputy President Colman in order to deal with a number of procedural matters regarding the Referral Application. At the mention, the Appellant opposed the Respondent’s request to be legally represented pursuant so s 596 of the Act. The Appellant also sought orders that he be de-identified. In a decision given on transcript (DP Colman’s Interlocutory Decision), Deputy President Colman granted permission to the Respondent to be legally represented and refused to make the de-identification orders sought by the Appellant.

[7] On 20 September 2021, the Appellant lodged an appeal (the Interlocutory Appeal) against DP Colman’s Interlocutory Decision. This appeal was assigned matter number C2021/6370 and is purportedly an appeal against Deputy President Colman’s refusal to de-identify the Appellant and his decision to grant permission to the Respondent to be legally represented in relation to the Referral Application. Confusingly, the Interlocutory Appeal is also purportedly an appeal against a decision of Deputy President Lake to permit Corrs Chambers Westgarth (Corrs) to make submissions on behalf of the Respondent and represent it in directions hearings in relation to the General Protections Application.

[8] Deputy President Colman issued a decision 1 (the Referral Decision) on 22 September 2021, refusing the Appellant’s Referral Application.

[9] On 30 September 2021, the Appellant lodged a fresh appeal, which was assigned matter number C2021/6613. By this fresh appeal, the Appellant sought to prevent Deputy President Lake from hearing the General Protections Application, which at the time, had been listed for hearing on 1 October 2021. Deputy President Lake proceeded to hear the General Protections Application on 1 October 2021. As a result, the Appellant discontinued appeal C2021/6613 by email, on 8 October 2021.

[10] On 1 October 2021, the Appellant filed a Form F48 with the Commission which, inter alia, indicated that he wishes for all matters before the Commission to be stayed in order for him to seek declaratory relief from the Supreme Court of Queensland (the Supreme Court). On 6 October 2021, the Respondent opposed a stay of the Interlocutory Appeal and the now discontinued appeal referred to above; at the time the appeal was still on foot. Accordingly, this Full Bench directed the parties to file written submissions regarding the Appellant’s stay application.

[11] On 10 October 2021, the Appellant lodged two further appeals. One of these appeals was assigned matter number C2021/6815 and it is an appeal against Deputy President Colman’s Referral Decision. The other appeal was assigned matter number C2021/6818 and is purportedly an appeal against Deputy President Lake’s decision to permit Corrs to make submissions on behalf of the Respondent and also represent it at the 1 October 2021 hearing.

[12] To summarise, these are the current matters before the Commission:

•  Matter C2021/4098 which is the General Protections Application.

•  Matter C2021/6370 which is the Interlocutory Appeal.

•  Matter C2021/6815 which is the appeal against the Referral Decision. Henceforth it will be referred to as the Referral Appeal.

•  Matter C2021/6818 which is the appeal against Deputy President Lake’s decision to allow Corrs to represent the Respondent at the 1 October 2021 hearing and also to make submissions for the Respondent. Henceforth, it will be referred to as the Representation Appeal.

[13] It should be noted that the Referral Appeal and the Representation Appeal were filed after directions were made for the filing of submissions regarding the stay application. In his submissions, the Appellant seeks a stay of the General Protections Application, the Interlocutory Appeal and “any related applications or appeals”. 2 In its submissions, the Respondent addresses a stay in relation only to the Interlocutory Appeal and the now discontinued appeal against Deputy President Lake. Regardless, for the reasons that follow, we refuse to issue a stay in relation to any of the matters currently before the Commission.

Applicable Principles

[14] The principles applying to the determination of stay applications which are usually applied by the Commission are stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 3 Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[15] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the Appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 4

Appellant’s submissions

[16] The Appellant submits that the Commission has institutional limitations that prevent it from settling legal rights and duties. In short, the Appellant contends that the resolution of the General Protections Application requires a determination of whether certain actions taken by the Respondent were prohibited under s 36 of the PID Act. The Appellant further contends that a determination of these legal questions falls outside the general powers of the Commission and, that the Supreme Court, unlike the Commission, can provide declaratory relief.

[17] The Appellant also submits that legal issues arising in the General Protections Application have criminal law implications and that the Commission is not “the right venue to make decisions that touch on criminal liability.” 5

[18] The Appellant submits that the Commission must not ignore other relevant legislation such as the PID Act. Despite this obligation to consider other relevant legislation, the Appellant submits that the Commission does not have expertise in general statutory interpretation and more specifically, has no practical experience construing state, territory and federal whistleblowing protection laws. The Appellant points to a number of cases decided by the Commission that involved whistleblowing and public interest disclosure legislation. It is the Appellant’s assertion that in these cases, the Commission mentioned public interest disclosure legislation but never interpreted and applied it.

[19] The Appellant also reiterates his objection to Corrs acting for the Respondent. In essence, the Appellant contends that Corrs is not properly acting for the Respondent, rather, as the Appellant contends, Corrs’ “true client” is/are one or more senior officers of the Respondent. It is the Appellant’s contention that these senior officers are utilising the Respondent’s resources to pursue their own personal and professional interests. The Appellant further alleges that Corrs lawyers have acted contrary to their professional duties in “disguising their true client”. 6

[20] The Appellant proposes an alternative solution which is to refer any questions of law arising in the General Protections Application that require statutory interpretation of the PID Act to the Federal Court. The Appellant asserts that the Full Bench has the power to request a referral under s 608 on its own initiative.

Respondent’s submissions

[21] The Respondent submits that there is no express power conferred on the Commission to grant a stay of proceedings in relation to the Interlocutory Appeal and the now discontinued C2021/6613. The Respondent contends that s 606 of the Act confers a discretionary power on the Commission to stay the operation of a decision from which the Commission hears an appeal. The Respondent contends that the current stay application is for proceedings that remain on foot, not decisions from which appeals are being sought and as such, there is no express power for the Commission to order a stay.

[22] The Respondent further contends that regarding the stay application before it, the Commission has no general power to stay the proceedings for which a stay is sought. The Respondent submits that there is no abuse of process, the Commission is capable of determining the appeals by proceeding to a hearing on permission, there are no proceedings pending in another court and no apparent grounds on which such other proceedings may be brought. The Respondent notes there are also no criminal proceedings on foot. The Respondent contends that if the Appellant has brought proceedings in the inappropriate forum, he should discontinue the various proceedings before the Commission rather than seek a stay while he proceeds in a different forum.

[23] The Respondent submits that a stay of the Interlocutory Appeal would be meaningless as the Referral Decision has already been issued by Deputy President Colman. Similarly, the Respondent submits that a stay of C2021/6613 is also meaningless given the hearing before Deputy President Lake has already taken place on 1 October 2021.

[24] The Respondent submits that the Appellant’s reasons for seeking a stay are baseless. Regarding the General Protections Application, the Respondent submits that the operation of the PID Act is irrelevant as the only issue being determined in that matter, is whether or not the Appellant was dismissed pursuant to s 386 of the Act. Similarly, the Respondent submits that the PID Act has no relevance to the Interlocutory Appeal, it being an appeal against an interlocutory decision of Deputy President Colman to grant legal representation and refuse deidentification of the Appellant.

[25] The Respondent submits that the Appellant has not sought declaratory relief from the Supreme Court, despite expressing an intention to do so, and that the Supreme Court does not have the power to grant declaratory relief under the PID Act of the nature proposed by the Appellant. For this reason, the Respondent submits, the stay application should be refused.

[26] Regarding the Appellant’s submissions that legal issues in the General Protections Application give rise to criminal law applications, the Respondent submits that it is misguided to suggest that the allegations of criminal conduct raised by the Appellant have any application to the General Protections Application. Furthermore, the Respondent submits the same is true of the appeals which the Appellant seeks a stay in respect of.

[27] The Respondent submits that the Appellant has already sought a stay of the General Protections Application, by way of a Form F48. Deputy President Lake refused that application “on the basis that no cogent reasons had been advanced to stay the proceedings.” 7

[28] The Respondent rejects the Appellant’s purported objection to Corrs’ representation of the Respondent as bizarre, disparaging, and baseless.

[29] The Respondent submits that the alternative solution offered by the Appellant, being a referral to the Federal Court pursuant to s 608 of the Act does not apply to the Interlocutory Appeal and matter C2021/6613. Regarding the General Protections Application, the Respondent submits that Deputy President Colman already dealt with the Appellant’s earlier Referral Application, the result of which the Appellant has now appealed.

Consideration

Issues regarding representation

[30] It is useful for us to first deal with the Appellant’s objection to Corrs representing the Respondent, as this is an issue that permeates through the Appellant’s various appeals and in his submissions regarding the stay application before us.

[31] As aforementioned, Deputy President Colman and Deputy President Lake have both separately granted permission to the Respondent to be legally represented in accordance with s 596 of the Act. It is open to the Appellant to appeal these decisions on the basis that there is some error in the exercise of the Members’ discretion to grant permission. However, that is not what the Appellant is purporting to do. The Appellant has contended and is continuing to contend that Corrs is not properly representing the Respondent, rather, they are representing individuals who are senior officers of the Respondent.

[32] The Appellant has misconceived the powers of the Commission in granting permission to be represented. A differently constituted Full Bench of the Commission found the following in New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office: 8

“[24] We also consider that the Commissioner fell into error in another respect. We have earlier set out the process by which the Commissioner determined the question of the ATO’s representation in the matter before him. What the Commissioner effectively did on 4 and 5 December 2013 was, in a commingled way, to grant the ATO permission to be represented by its solicitor, Mr Noakes, but refuse it permission to be represented by its counsel, Mr Cross. In doing so, what the Commissioner did in substance was to select who, from the ATO’s legal team, would represent it at the hearing. That was not a course authorised by s.596. The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor. We do not consider that the power in s.596 was intended to interfere with a party’s right to choose who its legal representative (or paid agent) would be if permission was to be granted.”

[33] As the above passage makes clear, once permission for representation has been granted by the Commission, there is no power for the Commission to dictate who can and cannot be the legal representative of the party to which permission for representation has been granted. The Appellant’s contention that Corrs and/or its lawyers have acted in contravention of their ethical duties is not a matter that can properly be decided by the Commission. It is a matter for the Law Society or another regulator to investigate the Appellant’s claims of misconduct.

[34] Furthermore, the Appellant has repeatedly taken issue with Corrs preparing submissions on behalf of the Respondent. Rule 12 of the Fair Work Commission Rules 2013 (the Rules) reads as follows:

“12 Representation by lawyers and paid agents

(1) For the purposes of subsection 596(1) of the [Fair Work Act 2009], in any matter before the Commission, a person:

(a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but

(b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter.”

[35] As Rule 12 clearly states, permission is not required for a lawyer or paid agent to prepare written submissions on behalf of a party. Permission is only required for representation in a conference or hearing before the Commission. Therefore, the Appellant’s repeated objections to Corrs acting for the Respondent in the form of preparing submissions have been made on a misconception that permission must be granted to them to do so. Again, if the Appellant is alleging that Corrs have not been properly instructed by the Respondent, or are otherwise improperly acting for them, this is a matter that must be dealt with by a regulator. It is not for the Commission to make inquiries regarding whether or not Corrs are properly acting for the Respondent.

Power to issue a stay

[36] Section 606 of the Act confers upon the Commission a discretionary power to stay decisions from which an appeal under s 604 is being sought. We note that the Appellant is seeking stays of appeals that are already on foot; being the Interlocutory Appeal, the Referral Appeal and the Representation Appeal. Furthermore, the Appellant is also seeking a stay of the General Protections Application, a matter in which a decision on the substantive issue has not yet been issued. Accordingly, the Appellant is not seeking a stay of an existing decision under appeal in respect of which the Commission has the power to issue a stay order.

[37] It is perhaps more accurate to say that the Appellant is seeking that the three appeals and the General Protections Application be stood over or held in abeyance in order for him to seek declaratory relief in the Supreme Court. In these circumstances, the usual principles, enunciated above, regarding the grant of a stay are not applicable because it is not a stay that the Appellant is seeking.

[38] We are not satisfied that the appeals and the General Protections Application should be stood over or otherwise held in abeyance. Despite expressing an intention to commence proceedings in the Supreme Court, we are not aware that any such proceedings currently exist. Furthermore, even if proceedings in the Supreme Court have been commenced or will commence in the future this has no impact upon the matters before the Commission. Regarding the General Protections Application, the issue before the Commission is limited only to determining whether or not the Appellant was dismissed pursuant to s 386 of the Act. There is no reason to defer the proceedings for the Appellant to seek the declaratory relief he is purporting to seek from the Supreme Court. If the Appellant is aggrieved by the substantive decision that will ultimately be issued in relation to the General Protections Application, he may appeal that in due course. In any event, the Appellant has already made an application to Deputy President Lake to stay those proceedings and that application has been refused. We see no reason, and indeed there is no power, for us to stay those proceedings.

[39] Regarding the appeals, we similarly see no reason to stand over or otherwise hold those proceedings in abeyance. The Interlocutory Appeal goes only to DP Colman’s Interlocutory Decision. Any relief the Appellant seeks in the Supreme Court will have no bearing on that appeal and we see no reason to prevent it proceeding in the normal course. Regarding the Referral Appeal, there is similarly nothing that suggests these proceedings should be halted. The Representation Appeal goes entirely to issues of the Respondent’s legal representation. We have already indicated the issues with the Appellant’s submissions in that appeal above. There is no reason for the Representation Appeal to be stood over.

[40] The Respondent has previously submitted that the proceedings brought by the Appellant may in fact have been filed in an inappropriate forum and the Appellant should seek relief in another court. Whilst this is a matter for the Appellant, we note that there may be some force in those submissions that the Commission is not the correct forum in which to seek the relief the Appellant desires.

Conclusion

[41] For the above reasons the Appellant’s application for a stay is dismissed.

[42] Directions will be issued for the further conduct of the appeals on foot.

VICE PRESIDENT

Final written submissions:

Respondent’s written submissions dated 13 October 2021.

Appellant’s submissions in reply dated 15 October 2021.

Printed by authority of the Commonwealth Government Printer

<PR735143>

 1   Wolff v Queensland University of Technology [2021] FWC 5967.

 2   Appellant’s submissions dated 8 October 2021.

 3   [2000] AIRC 785, Print S2639.

 4   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9].

 5   Appellant’s submissions dated 8 October 2021.

 6   Ibid.

 7   Respondent’s submissions dated 13 October 2021, at paragraph 47.

 8   [2014] FWCFB 1663.