Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Prateek Patial
v
Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants
(U2020/11942)

Application for an unfair dismissal remedy – costs application

[1] On 6 August 2021, I issued a decision and order dismissing Prateek Patial’s application for an unfair dismissal remedy: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167. On 20 August 2021, Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (“Kailash”) made an application for a costs order against Mr Patial in the matter. While the costs application was made within time, the hearing of Kailash’s costs application was deferred pending the outcome of the appeal made by Mr Patial concerning my original dismissal of his application.

[2] On 24 November 2021, a Full Bench of the Commission dismissed Mr Patial’s application for permission to appeal: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWCFB 6059. Kailash’s costs application was then relisted before me shortly thereafter but, for reasons which are unnecessary to detail, directions concerning the costs application were then not made until 13 January 2022. I initially made directions to deal with the costs application on the papers. However, I subsequently also listed the matter on two occasions, because Mr Patial had indicated in his written submissions that he wished to have the opportunity to cross-examine Sarah Christie, who had provided a witness statement in support of Kailash’s costs application (as well as another person). Ms Christie is an employee of Employsure Law Pty Ltd (“Employsure”). She had represented Kailash in the initial proceedings before me, together with Employsure’s Troy Plummer. While Employsure ceased acting for Kailash for a period of time after the costs application had been lodged, Employsure later resumed representation for Kailash. As a consequence of the relistings to deal with Mr Patial’s wish to conduct a cross-examination of Ms Christie, I also amended the directions to cater for the interruption to the original directions timetable to allow Mr Patial to make further written submissions following the cross-examination of Ms Christie and also to defer the date for Kailash’s final round of written submissions.

[3] Kailash seeks an order for costs against Mr Patial pursuant to ss.400A and 611 of the Fair Work Act 2009 (“Act”) on the bases that his application for an unfair dismissal remedy: (a) entailed unreasonable acts or omissions which caused Kailash to incur costs; and/or (b) was brought vexatiously; and/or (c) was brought without reasonable cause. In support of the costs application, Kailash relied on its outline of submissions, a witness statement by Ms Christie and documentary materials. Kailash seeks costs on an indemnity basis. In the alternative, Kailash seeks party/party costs. The costs application is opposed by Mr Patial. Mr Patial submits that the costs application should be dismissed, and he has also proposed various other outcomes.

Kailash’s case in support of its costs application

[4] Kailash referred to the relevant costs provisions of the Act, namely s.400A and s.611; the Explanatory Memorandum; and Gugiatti v SolarisCare Foundation Ltd [2016] FWCFB 2478 (“Gugiatti”) a case in which the Full Bench of the Commission discussed the preconditions for making a costs order and said (at [61]): “…The section is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.” The Full Bench also said:

“[43] Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.”

[5] Kailash seeks an order for costs in respect of Mr Patial’s conduct in the proceedings on the basis that: (a) his conduct amounted to unreasonable acts or omissions in relation to the continuation of the matter and his conduct throughout proceedings; and (b) his conduct caused Kailash to incur significant and unnecessary costs. Kailash submitted that the two preconditions established in Gugiatti have been met and the Commission should exercise discretionary power to order costs against Mr Patial in favour of Kailash.

[6] Kailash submitted that Mr Patial’s behaviour throughout the proceedings: was manifestly unreasonable; had the effect of protracting the hearing over four separate days; and saw a significant volume of irrelevant material and oral testimony adduced into evidence. Kailash submitted that Mr Patial’s behaviour was particularly unreasonable given his occupation as an admitted solicitor in New South Wales. As an admitted solicitor, Mr Patial ought to have: brought his case efficiently and with greater sensitivity to the parties’ and Commission’s time; had an appreciation of the timeline for filing materials and procedural regularities associated with conducting proceedings in the Commission; been adept at narrowing the issues in dispute and focussing the Commission’s attention on relevant matters and only those issues which could be determined by the Commissioner.

[7] Kailash noted that throughout the proceedings, Mr Patial made representations of being a “young lawyer” and not having knowledge of the Commission’s processes. For example, at the hearing on 20 May 2021 the following exchange occurred:

“THE COMMISSIONER: And then the respondent will file and serve its final reply submissions on 5 July 2021. That is the end of the directions concerning the filing and service of materials. The respondent goes first because they have the jurisdictional objection in relation to this matter. So just for abundant caution, there will be no right of reply for you following the final round of the respondent’s materials, which I expect to receive on or before 5 July 2021. Is there any confusion on your part about that, Mr Patial?

MR PATIAL: No. Sorry, I am just new to this. I am just dealing with this matter for the first time, so that’s the only reason I am less aware.

THE COMMISSIONER: All right. Well, you’re a solicitor, so I think you’d be aware about - - -”.

[8] Kailash submitted that Mr Patial was not in fact dealing with this for the first time, having earlier brought an unfair dismissal application in 2012. Mr Patial has previously made at least one other unfair dismissal application in the Commission. The earlier application made by Mr Patial was dismissed by Commissioner Cargill on 15 October 2012: Prateek Patial v Woolworths Ltd T/A Woolworths Supermarkets [PR530151]).

[9] Given Mr Patial’s experience in the Commission, even if he may not have had experience preparing written closing submissions, he ought to have generally conducted himself more expeditiously and heeded the general expectations with respect to conduct in matters before the Commission.

[10] Kailash submitted that Mr Patial’s behaviour had the effect of unnecessarily prolonging proceedings, which caused Kailash to incur significant and unnecessary costs. Kailash referred to what it described as “clear evidence”, in summarised form, of Mr Patial’s behaviour but submitted “… it is notable that [Mr Patial’s] behaviour was so egregious and omnipresent throughout proceedings, it is difficult to account for all instances of unreasonable behaviour” that had the effect of causing Kailash to incur significant and unnecessary costs. As to Mr Patial having conducted himself unreasonably and having unnecessarily prolonged the proceedings, Kailash referred to the following:

•  failing to agree to terms of settlement that could have led to the application being discontinued, where the terms of settlement were uncontroversial and mutually beneficial;

•  filing further materials well outside the deadlines specified in the directions, on five separate occasions (including material which was capable of being filed in accordance with the directions);

•  requesting a third party (the Law Society of NSW) to send unsolicited correspondence to the Commission in relation to the proceedings, in contravention of the Commission’s directions;

•  leaving the hearing and the Commission’s premises on 30 March 2021 to attend an internet café;

•  failing to notify the Commission or Kailash of his intention to leave the hearing and the Commission’s premises for more than one hour on 30 March 2021 during the proceedings;

•  filing privileged legal materials in contravention of his professional obligations, causing significant distress to Kailash and necessitating action by Kailash;

•  bringing his case in an unfocussed manner resulting in Kailash’s primary witness, Amit Pall (who is the director/principal of Kailash), being cross-examined over four separate days;

•  drawing the Commission’s attention to matters which were manifestly irrelevant to the proceedings;

•  ignoring the Commission’s directions not to cross-examine Kailash’s witnesses on the labels of third parties who were not party to the proceedings, as well as ignoring other directions of the Commissioner in relation to bringing his case;

•  cross-examining Kailash’s witnesses on irrelevant material;

•  repeatedly cross-examining Kailash’s witnesses on the same material;

•  failing to respond to Kailash’s request to agree a statement of facts to narrow the issues in dispute;

•  failing to participate constructively in discussions regarding the content of the statement of agreed facts;

•  proposing settlement offers which were predicated upon the parties not signing written terms of settlement and/or did not include release clauses; and

•  making various baseless allegations against Mr Pall, Mr Plummer and Ms Christie throughout the proceedings.

[11] Kailash further submitted that the Commission was ultimately persuaded by Kailash’s arguments and, in the decision dismissing Mr Patial’s application for an unfair dismissal remedy, made several adverse comments as to Mr Patial’s credibility and the way he brought his case. Kailash referred to the following extracts of my decision:

“[6] Before turning to a consideration of the threshold jurisdictional point, 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 the applicant and/or matters arising in his unfocussed cross-examination of the respondent’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. Delays were compounded by the applicant seeking to have admitted into evidence materials he filed and served well outside the timeframes specified in the directions. Moreover, the Law Society of New South Wales (the “Law Society”), somewhat irregularly I thought, sent directly to me unsolicited correspondence about certain matters part-way through the hearing. The applicant confirmed that this correspondence from the Law Society had been sent to me at his behest.

[7] There was much in the applicant’s cross-examination of Mr Pall about matters which are properly or relevantly the domain of the Law Society and, similarly, various matters arising in the respondent’s case are also properly or relevantly matters for the Law Society or the Office of the Legal Services Commissioner; being professional-type matters which are not relevantly for determination by me. Other matters addressed in the applicant’s evidence or his cross-examination of Mr Pall included, for instance, invoices the applicant generated immediately around the time of the cessation of the relationship. These invoices concerned services said to have been provided in assembling or moving furniture; attendance at, or making arrangements concerning, a community festival where the respondent had a stall or similar; and IT services said to have been provided to both the respondent and another entity - invoiced to the respondent in the amount of $64,000. The evidence and submissions also addressed items said, respectively by the applicant and Mr Pall, to have been respectively improperly retained following the cessation of the relationship. This is not a complete catalogue of matters. I do not propose to catalogue the irrelevancies in the decision including, for example, written submissions advanced by the applicant under the sub-heading “Playing the Violin in the Ears of the Commissioner by Dictator (Respondent’s Principal Mr Pall)” (bold in original).

…

[20] I will not catalogue in the decision the irrelevant matters raised in the applicant’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 the applicant concerning all manner of things that were not relevant to the determination of this application.”

[12] On this basis, Kailash seeks an order for indemnity costs from 9 September 2020, when the application was made, to 23 July 2021 on the grounds that Mr Patial’s conduct amounted to unreasonable acts or omissions in relation to the continuation of the matter and his conduct throughout proceedings, which caused Kailash to incur costs.

[13] In the alternative, Kailash seeks an order for party/party costs from 21 September 2020 (the date the first offer of settlement lapsed) to 23 July 2021 on the grounds that Mr Patial’s conduct amounted to unreasonable acts or omissions in relation to the continuation of the matter and his conduct throughout proceedings, which caused Kailash to incur costs.

[14] Kailash next referred to the costs arrangements in the Act whereby the Commission may make an order for costs if satisfied that, in accordance with s.611(2)(a) of the Act, the first party made the application vexatiously or without reasonable cause. As an alternative basis to its costs application advanced against the provisions of s.400A, Kailash seeks an order for costs pursuant to s.611(2)(a) of the Act on the basis that Mr Patial acted vexatiously in bringing the unfair dismissal application – including by reference to the general approach to “vexatiously” in predecessor legislation as described by North J in Nilsen v Loyal Orange Trust [1997] 76 IR 180 at 181:

“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage …”.

[15] Kailash submitted that Mr Patial instituted and prolonged the proceedings to harass it. Kailash also submitted that the unfair dismissal application was demonstrative of Mr Patial’s general intention to annoy Kailash, or drown Kailash in litigation and/or administrative review processes, noting that the unfair dismissal application was but one of the proceedings and complaints commenced by Mr Patial against Kailash. Such openness as to ongoing and future claims against Kailash was admitted throughout the proceedings by Mr Patial and, in making reference to reference to comments that I made, it was submitted that the Commission was cognisant of the context in which the unfair dismissal application was brought, and predominant purpose for which it was sustained. Kailash referred to the following comments I made in the proceedings:

“And, Mr Patial, you are a fairly recent graduate, but one of the things that I detect from the materials, I may be wrong or I may not be right about this, but you, in your materials, allege or seek to allege various matters concerning the firm or Mr Pall or both. These matters only arise after a dispute concerning alleged underpayments. As a solicitor if you had a concern about matters, you had obligations. You didn’t follow through on any of those obligations which would apply to you, a higher standard than general members of the public, and indeed may have been complicit in them. These allegations are only raised, complaints are only made after disagreement concerning payments under the contract being a contract you relevantly had with a predecessor law firm, and which you say in this case actually amounts to employment.”

[16] Kailash also referred to that part of my decision which read:

“[31] In response to the advice concerning the termination, the applicant sent an email to Mr Pall on 31 August 2020, attaching documents including a letter setting out various demands, and various invoices and claims for reimbursements calculated by the applicant in the total amount of $93,736.58. The applicant advised in the letter that when Mr Pall had attended to the demands he had set out and made the payment “only then” would he “handover the office items to you, such as case files, keys, access card.”

[17] Kailash next addressed some developments which followed the dismissal of the unfair dismissal and Kailash’s filing of its costs application, which Kailash described as “threatening to appeal the decision and institute further litigation if the Costs application was not discontinued”. That is, Mr Patial wrote to Employsure in the following terms as follows (bold in original):

“I hereby give you an offer to withdraw the Application for Costs on or before 5 pm Tuesday 24 August 2021 and advise and educate your client to pay my Outstanding Wages, and I will not file the Application for Appeal against the Fair Work Commission Decision

In the event, if your client fails to withdraw the Application for Costs before 5 pm Tuesday 24 August 2021 and pay/clear my Outstanding Wages, I will do the following:

1. I will file the Application for Appeal against the decision; Next time, you may not be lucky.

2. In addition to the above proceedings, I will start the separate proceedings against your client in the Federal Court in relation to the Sham Contract, Discrimination, Outstanding wages, Modern-day Slavery for not paying the wages for the work I performed at his premises, trying to involve the junior in illegal activities, for instance, Fake Work Experience to [name], Fake Payslips to [name] etc. and forced the junior to file [name’s] Visa Application and much more.

3. Please also note that I will not stop here; I will expose and report your client’s wrongdoings and malpractices that include sham agreements done by him with other lawyers who worked at his firm in the past, which he admitted himself at the Commission in front of media.

4. I note that You and Troy Plummer had signed the submissions and used the Grouchy vocabulary against me, denigrate me without any evidence and mislead the Commission[.]

In due course, I will also start the defamation proceeding against Employsure Pty Ltd, Troy Plummer and Sarah Christie (you). …”.

[18] Shortly after the preceding letter, Mr Pall received further correspondence from Mr Patial, in which Mr Patial variously referred to his own actions as “revenge” and wrote “… I will not step back if you continue [to take revenge (with the costs application)]. I will be left with no choice but to drag you deep down in a mess …”.

[19] Kailash submitted that, from the outset of proceedings, Mr Patial has deliberately sought to harass it. Mr Patial’s initial conduct, immediately following the termination, particularly in respect of “the unfair dismissal application and the baseless invoices contained within, have been made for the predominant purpose of pestering and belligerently wearing down” Kailash and Mr Pall. Throughout proceedings, Kailash had been barraged by Mr Patial over four days of hearing and cross-examination, volumes of unnecessary and out-of-time submissions, and threats of further proceedings. Since the decision dismissing the unfair dismissal application, Kailash has been subject to further litigation in the Federal Court and an appeal in the Commission. Kailash has received threats against it and its representatives if the costs application was not discontinued.

[20] Kailash characterised matters about Mr Patial’s conduct, in bringing the unfair dismissal application and demanding payment of invoices and alleged wages, as having been “sparked by an affront to his character and professional identity” when his general services agreement with Kailash was terminated by Mr Pall. Kailash submitted that this “protracted and arduous saga has been driven by feelings of humiliation for the sole purpose of exacting revenge and harassing” Kailash until such a time as Mr Patial “perceives his reputation and honour is restored.” This is not a proper basis for bringing proceedings. Kailash submitted that such purposes are antithetical to the purposes of the Act and a misuse of Commission processes. Kailash submitted that such purposes are, saliently, vexatious and a proper ground for awarding costs pursuant to s.611(2)(a) of the Act on the grounds that the unfair dismissal application was made vexatiously and with the predominant purpose of harassing Kailash.

[21] Further, and again in the alternative, Kailash seeks an order for costs pursuant to s.611(2)(a) of the Act on the basis that Mr Patial brought the application for an unfair dismissal remedy without reasonable cause. Kailash referred to Neil Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 where the Full Bench said the following as to the question of whether there was reasonable cause (references not reproduced):

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.”

[22] Kailash submitted that the unfair dismissal application was brought without reasonable cause because it was brought for the purpose of obtaining remedies which variously sit outside the scope of powers established in ss.390-392 of the Act. In particular, the Mr Patial’s pursuit of alleged unpaid invoices and unpaid wages throughout the proceedings demonstrated his intention to misuse the Commission’s process for his ulterior purpose of obtaining payment of these allegedly due sums of money. Kailash submitted that this was not a reasonable basis for making and sustaining the unfair dismissal application.

[23] Kailash noted that, throughout the proceedings, Mr Patial continued to refer to his alleged unpaid invoices and put questions to Mr Pall in relation to moving of furniture and Kailash’s information technology for the purposes of establishing a basis for the payment of invoices. Kailash further submitted that the Commission was cognisant of the context in which the unfair dismissal application was brought, and predominant purpose for which it was sustained given what was said by me during proceedings:

“… And if you have an allegation concerning alleged underpayments there are avenues in relation to that, but as a solicitor you ought to know that. And an application for an unfair dismissal remedy is not a jurisdictionally appropriate vehicle for that. But again, you know that or you ought know it.”

[24] Kailash put Mr Patial on notice from 2 October 2020 that the remedies sought were outside the Commission’s jurisdiction. Mr Patial was also on notice from this date that if he continued to pursue his unfair dismissal application (including the remedies sought), Kailash would pursue costs on an indemnity basis pursuant to the principles of Calderbank v Calderbank [1975] 3 All ER 333. At no point during the proceedings did Mr Patial amend his application and the remedies sought. In consequence, costs should be ordered on the grounds that the unfair dismissal application was brought without reasonable cause.

[25] In conclusion, Kailash requested that the Commission order costs against Mr Patial pursuant to s.400A(1) and s.611(2)(a) of the Act, on an indemnity basis and in the amounts set out in its application. In the alternative, Kailash requested that the Commission order costs against Mr Patial pursuant to s.400A(1) and s.611(2)(a) of the Act, on a party/party basis in the amounts set out in its case.

Mr Patial’s submissions

[26] Mr Patial’s written submissions dealt with various matters that travelled beyond opposition to Kailash’s costs application.

[27] Mr Patial referred to and adopted the previous background and law outlined in his previous submission (concerning the substantive unfair dismissal application) and said “I assert that I was unfairly dismissed” and that the application he filed “was straightforward concerning unfair dismissal and unpaid wages”.

[28] Mr Patial submitted that Employsure’s Mr Plummer filed the employer’s response “full of numerous false allegations without any supporting evidence”; and false statements contrary to Mr Pall’s instructions, e.g., a reference to a “cold call” to Mr Pall. Mr Patial made submissions around the exercise of his independent discretion, and to “Mr Pall’s oral testimony, Agreement for General Use, and the Legal Profession Uniform Law, etcetera”.

[29] Mr Patial submitted the Commission should note that he worked as a restricted legal practitioner under the supervision of Mr Pall from April 2019 to August 2020. He further submitted:

•  that throughout the proceedings, Mr Pall, Ms Christie and Mr Plummer provided “false and misleading statements to the Commission, prejudiced the Commissioner against me by throwing spurious unfounded allegations, resulting in the miscarriage of justice”;

•  that Ms Christie, Mr Plummer, and Kailash have made many false allegations against him, which he strongly denied; and

•  that the Commission had has no supporting evidence against these fabricated unfounded allegations.

[30] Mr Patial’s submissions continued that significant portions of Kailash’s submissions and schedule of costs have no relevance to the application. He submitted that the inclusion of such information is for an ulterior purpose, such as to prejudice the Commission and to gain a collateral advantage.

[31] Mr Patial submitted that while he addressed certain parts of Kailash’s submissions and evidence, where he did not respond to or address any part of the matters raised by Kailash that should not be taken to be admitted unless otherwise admitted by him.

[32] Mr Patial submitted the costs application be dismissed. Moreover, Mr Patial further submitted that:

•  the matter should be reheard de novo;

•  the previous decision should be revoked under s.603 of the Act because of the miscarriage of justice and because of the following reasons:

- Mr Pall gave false written and oral evidence (with his affidavit drafted by Ms Christie or Mr Plummer containing numerous unfounded accusations and allegations, and not providing any record of the incidents, accusations and allegations to the Commission);

- false statements and false accusations in Kailash’s submissions by Mr Plummer and Ms Christie;

- Ms Christie induced a witness to give false evidence against him (and Mr Plummer or Ms Christie, in drafting that witness’s statement, wrote numerous false allegations - however, the witness did not recall any of the incidents in cross-examination); and,

- Mr Pall, another witness, Ms Christie and Mr Plummer had not provided any record of the incidents, accusations and allegations to the Commission.

[33] Mr Patial’s submissions continued that “To save the Fair Work Commission’s fairness and integrity, the matter should be referred to the Federal Court of Australia for directions; or Directions be given to the General Manager of the Fair Work Commission to initiate the Criminal Proceeding against Mr Pall, Mr Plummer and Ms Christie under section 674, 676 and 678 of the Act”.

[34] As to procedural fairness, Mr Patial submitted that an order should be given to cross-examine Mr Plummer and Ms Christie, because: (a) Mr Plummer and Ms Christie signed all the submissions; (b) Mr Plummer or Ms Christie drafted the witnesses’ affidavits; and (c) Ms Christie had filed her affidavit (sic; witness statement) dated 3 February 2022, which had “numerous discrepancies”. (I interpose to note that, upon a relisting of the matter in connection with this application, I acceded to Mr Patial’s submission that Ms Christie should be available for cross-examination, and she subsequently was cross-examined by Mr Patial. I declined to accede the application concerning Mr Plummer.)

[35] As to the schedule of costs itself, Mr Patial submitted it should be properly assessed by the approved costs assessor “because of numerous false claims, for example, Ms Christie is a paid agent (unqualified person) and charging a rate of a solicitor …”. He submitted that Ms Christie had provided false claims and information to the Commission to gain a monetary benefit. In the alternative, the costs application should be put on hold until the final determination of the Federal Court proceedings.

[36] Mr Patial next extracted, or references, various sections of the Act, namely, s.399A, 400A, s.611, s.674, s.676 and 678.

[37] As to s.399A of the Act, Mr Patial submitted that he did not act unreasonably in the proceedings, because “otherwise the Commissioner would dismiss his application as per s.399A of the Act”.

[38] As to s.611 of the Act, each party in this case must bear their own costs because of the following reasons:

•  Mr Pall, principal director of Kailash, did not need any representation in the proceedings because he is fluent in written and spoken English, and a highly-educated and experienced lawyer in employment law with 13 years of legal experience;

•  Mr Plummer, principal of Employsure, did not seek representation to act for Mr Pall and Kailash though he has 22 years of experience in employment law. Instead, Ms Christie sought representation for Mr Pall, though she is a recent graduate, non-qualified lawyer, and not admitted to practice as a lawyer in Australia;

•  Ms Christie provided the false statement to the Commission that Mr Pall has no experience in employment law contrary to the (documentary) evidence already provided to the Commission; and

•  Kailash did not need any legal representation as it has a team of paralegals and solicitors.

[39] Under the sub-heading “Perjury/False Evidence by Mr Amit Pall”, Mr Patial submitted that the substantive question for the Commission is to decide whether certain statements were perjury or false evidence given by Mr Pall, including “to gain a collateral advantage, resulting in the miscarriage of justice”. I do not propose to summarise the questions Mr Pall posed and his associated submissions. They are not relevant to the costs application.

[40] Mr Patial next turned to the credibility of Kailash’s witnesses and representatives, particularly Ms Christie – relevantly submitting that he wanted to draw to attention that Ms Christie had misled the Commission that she was a lawyer/solicitor. (I do not propose to outline Mr Patial’s submissions around this matter because his submissions are plainly wrong, as shown by the transcript at the point when I was dealing at the outset of the first proceeding with the question of permission to appear.) Moreover, the submissions by Mr Patial were that Ms Christie had: provided the false statements and submissions; colluded with a witness; and put the words in the mouth of Mr Pall in re-examination. I will return later to Mr Patial’s submissions that Ms Christie had provided false claims to the Commission in the schedule of costs and is claiming false solicitor fees. The net effect of Mr Patial’s submissions was that “Ms Christie is dishonest in the proceedings while acting for Mr Pall and [Kailash] and has no credibility, and the Commissioner should put no weight on her evidence, and her evidence should be disregarded.”

[41] Under the subheading “Criminal Penalties - Prejudiced the Commissioner - False Submissions - False Evidence - Perjury”, Mr Patial submitted that the substantive question for the Commission is to decide whether the certain statements and submissions were false or misleading. Once again, I do not propose to summarise the questions Mr Pall posed and his associated submissions. They are not relevant to the costs application and Mr Patial’s submissions otherwise sought to reagitate a matter that was determined in the substantive proceedings, namely, that he was not an employee of Kailash.

[42] Mr Patial next submitted that the substantive question for the Commission is to decide whether Gondwana is a third party or the party in the proceedings, submitting that “Gondwana is not a party to the proceeding”. Gondwana Lawyers was a law firm with which Mr Patial had an association before he started working with Kailash. The question posed for determination by Mr Patial as a substantive question is perplexing, if not bizarre. There was no suggestion - anywhere - that Gondwana Lawyers was a party to the proceedings and, so, there is nothing for me to determine either for or against Mr Patial’s submission in such respects; Gondwana Lawyers had no involvement in the proceeding whatsoever. Mr Patial’s submissions under this sub-heading otherwise sought to reagitate matters that were determined in the substantive proceedings, albeit approached in a slightly different way on the question of whether he was an employee of Kailash. I do not propose to repeat the submissions, as these submissions are not relevant to the costs application.

[43] Mr Patial suggested that Ms Christie had communicated with me without copying him on at least three occasions and that she had also submitted “false agreed facts” shortly before the hearing on 20 April 2021 without his knowledge and consent. As to a matter said to be false (in what, I note, was a proposed statement of agreed facts prepared by Employsure/Kailash), Mr Patial’s submissions noted that Kailash’s proposed document included text which read: “The Applicant paid for and used his own mobile phone to contact clients”. As to this, Mr Patial submitted that Kailash “did not pay me for my mobile phone, and this is a false statement”. Using this singular example concerning the proposed statement of agreed facts, Mr Patial submitted that Ms Christie prejudiced the Commission by sending false agreed facts to me without his consent. (I might interpose, at this point, to note that the proposed statement of agreed facts and Mr Patial’s submission have identical effect: Kailash’s “paid for and used his own mobile telephone” is the same as Mr Patial’s “did not pay” him for his mobile phone.)

[44] Mr Patial’s submissions continued under various further headings or subheadings including reference to the Legal Profession Uniform Law; Ms Christie or Mr Plummer drafting the witnesses’ statements and “throwing unfounded allegations” on him; collusion with a witness and the like. The submissions around these matters, once again, sought to reagitate or re-visit the findings that had been made in my decision dismissing the application. The generally repeated theme around these allegations made by Mr Patial was to the effect of an alleged purpose to gain a collateral advantage for Kailash, which resulted in the miscarriage of justice and an attack on the Commission’s integrity and fairness. Mr Patial again submitted that to save the integrity of the Commission that directions should be given to the Commission’s General Manager to investigate and initiate criminal proceedings against Mr Pall, Mr Plummer and Ms Christie under ss.674, 676 and 678 of the Act.

[45] Mr Patial submitted that Kailash’s offer of $8,250 was not a reasonable offer to set aside all claims, including “sham agreement, unpaid wages of approximately $100,000, workplace discrimination, workplace harassment, forced me to do the immigration fraud and psychological stress, etcetera”. Mr Patial further submitted that on 31 March 2021, when the parties were having their own discussions at the Commission’s premises, “Mr Pall stood up, moved around here and there while negotiating, circling around, and showed rude postures in the presence of Ms Christie and Mr Trail [of Employsure]”. Mr Patial submitted that the Commission “must check the video surveillance”, and it was because of Mr Pall’s conduct and attitude that the parties did not reach an amicable solution.

[46] Mr Patial referred to the status of matters involving the Law Society. (The parties have each made complaints to the Law Society and/or the Office of the Legal Services Commissioner). I do not repeat those submissions about the Law Society because what may be occurring in relation to complaints or referrals to that body is not relevant to the costs application and will be a matter for determination by it. Mr Patial also referred to matters concerning the proceedings he initiated against Kailash in the Federal Court. Similarly, what may be occurring in relation to complaints or referrals to the Federal Court is not relevant to the costs application and will be a matter for determination by it. Mr Patial also made a submission that he had a telephone call with Mr Pall on 13 January 2022. I do not recount that discussion, as it is not relevant to the costs application, including whether Mr Pall called Mr Patial a “Google Lawyer” and what Mr Pall may have said about legal advice Kailash had received including that “Mr Pall told me that he and his solicitors knew from day one (1) that I had started the proceedings under the wrong head”.

[47] Mr Patial submitted that it was Kailash, Mr Pall, Mr Plummer and Ms Christie who “took advantage of the Fair Work Commission jurisdiction, dragged this matter intentionally and provided false and misleading information to confuse the Commissioner and frustrate me.” Mr Patial submitted that Mr Plummer and Employsure are bound by solicitors’ conduct rules, and they had breached various such rules in this matter. Mr Patial submitted that false allegations have been put on the record by Mr Pall, Mr Plummer and Ms Christie.

[48] Mr Patial requested that the Commission should “seek evidence in relation to the false allegations and accusations from Mr Pall, Mr Plummer, and Ms Christie as it undermines [his] professional integrity. Mr Patial otherwise requested that I should remove the allegations from my previous decision. He submitted that if Mr Pall, Mr Plummer and Ms Christie did not provide any supporting evidence concerning false allegations (which prejudiced the Commission against him), they should be referred to the Office of the Legal Services Commissioner for their misconduct at the Fair Work Commission. Mr Patial submitted that he has a legal right to defend those false accusations and allegations.

[49] Mr Patial submitted that his claim was not vexatious or unreasonable, as per s.611(2) of the Act, though it was a fight to seek justice against unfairness. Here, Kailash incurred legal costs because of its own decisions, provided false and misleading information to the Commission, and threw false accusations on him without any supporting evidence. In light of the above submissions, Mr Patial made further submissions including:

•  that the matter would be resolved in a much more amicable, efficient and timely manner if Mr Pall, Mr Plummer and Ms Christie acted honestly in the proceedings and did not throw unfounded allegations on him without any evidence;

•  as per s.611 of the Act, that each party must bear their own costs;

•  the unfair dismissal application should be reheard, and the previous decision should be revoked under s.603 of the Act because of the miscarriage of justice and the reasons he discussed above;

•  that, alternatively, the proceedings should be stayed until the Commission completes the investigation concerning false evidence and submissions given by Mr Pall, Mr Plummer and Ms Christie; and

•  that, again in the alternative, the costs application should be stayed until the judicial determination of the Federal Court proceedings.

[50] As noted earlier in the decision, Mr Patial sought to be able to cross-examine Ms Christie and I acceded to that application given Ms Christie had provided a witness statement in support of Kailash’s costs application. In consequence, I also allowed Mr Patial the opportunity to make a further written submission following/arising from that cross-examination and extended the date for the final reply submissions by Kailash.

[51] Mr Patial submitted that Ms Christie’s evidence indicated that she: has finished her law degree, and is currently doing the Practical Legal Training course at the College of Law; is currently not admitted; is an employee of Employsure; and had appeared in approximately 100 matters and represented clients in tribunals and the Commission.

[52] Mr Patial referred to s.12 of the Act which defines “paid agent” as “in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter”; and a “lawyer” “means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.” Mr Patial submitted that Ms Christie is not a paid agent or a lawyer because she is a law graduate, working as an employee of the law firm Employsure and is covered by Legal Services Award. However, Ms Christie is a law graduate and an employee of Employsure. Mr Patial submitted that “Ms Christie intentionally breached the law by representing the clients at the Commission/Tribunals when she had no right to practice [sic] law in her capacity. Accordingly, to save the integrity of the legal system Ms Christie’s, Troy Plummer and Employsure Law’s conduct must be referred to the legal bodies of Australia but not limited to Law Society NSW and Law Society Victoria.”

[53] Mr Patial noted that Ms Christie’s witness statement filed on 3 February 2022 identified that her position at Employsure is a “Legal Consultant”. Mr Patial submitted that Ms Christie intentionally filed this false statement in the proceedings for an ulterior purpose, such as to prejudice the Commission and gain a collateral advantage and monetary benefit. He further submitted that Ms Christie had worked as an “Employment Relationship Associate” from 15 September 2020 to 23 August 2021, based on 33 emails that had Ms Christie’s signature. As s.678 of the Act provides that it is an offence to provide a false statement to the Commission, accordingly, the matter should be referred to the Federal Court.

[54] Mr Patial next referred to alleged “evidence tampering” by Ms Christie by intentionally having removed her signatures from various attachments to her witness statements “for an ulterior purpose, such as to prejudice the Commissioner and to gain a collateral advantage to prove she is a legal consultant and for a monetary benefit.” Mr Patial referred to the original copies of the 33 emails with Ms Christie’s signature, also suggesting that she “forgot” to remove her signatures from the three annexures. Mr Patial submitted that tampering with the evidence is a criminal offence under the Crimes Act 1914 (Cth) and the Crimes Act 1900 (NSW). Accordingly, the matter should be referred to the Federal Court.

[55] Mr Patial submitted that Ms Christie “intentionally falsely claimed the solicitor scheduled rates” at numerous items in the costs schedule to gain a collateral advantage and for a monetary benefit. Mr Patial reiterated the submission that Ms Christie is not a solicitor/lawyer, a paid agent or a legal consultant as she is a law graduate covered by Legal Services Award. As it is an offence to provide a false statement to the Commission, the matter should be referred to the Federal Court. Mr Patial also made submissions that as Ms Christie had provided a false statement to the Commission in relation to various other matters, and they too should be referred to the Federal Court. Mr Patial alleged that Ms Christie:

•  falsely claimed the service costs with a motive to gain a collateral advantage and for a monetary benefit, although Ms Christie never served the documents to his office/address; and

•  intentionally replaced the words of the Fair Work Regulations 2009 (“the Regulations”) being “at the discretion of the FWC” with “Higher discretionary rate” in the schedule of costs to mislead the Commission, with a motive to gain a collateral advantage and for a monetary benefit.

[56] Mr Patial’s submissions then turned, once again, to allegations of Ms Christie “colluding with” Kailash’s witnesses. As to that, Mr Patial made submissions around item numbers in the schedule of costs concerning the drafting of the two witnesses’ statements and evidence in the proceedings. Once again, Mr Patial submitted that Ms Christie intentionally colluded with a witness “to prejudice the Commissioner with a motive to gain a collateral advantage for her client”, that it is an offence to provide a false statement to the Commission and, accordingly, the matter should be referred to the Federal Court. He further submitted that subornation of perjury is a criminal offence under s.333 of the NSW Crimes Act and, accordingly, this matter too should be referred to the Federal Court.

[57] Under a heading “Improper Persuasion” Mr Patial submitted the Commission was ultimately persuaded by Kailash’s arguments and, in the decision concerning his unfair dismissal application, several adverse comments were made as to his credibility and the manner in which he brought his case. As to that, Mr Patial submitted that Ms Christie improperly persuaded the Commission without any supporting evidence, for the following reasons:

•  Mr Pall and his representatives provided false information to the Commission that he drafted the Agreement for General Use “sham agreement”;

•  the Commission should note that in the sham agreement that his home address is written in his handwriting, but Kailash’s office address is typed on a computer. If Mr Patial had drafted the agreement, he would have typed his home address on a computer.

•  Mr Pall provided false information concerning migration agent status to the Commission; and

•  Mr Pall and his representatives threw numerous spurious allegations concerning his behaviour, stealing and deletion of 5,803 emails (being a “magic number without any source”), etcetera, without any supporting evidence.

[58] Mr Patial submitted that as it is an offence to improperly influence Commission members this too should be referred to the Federal Court (i.e., presupposing I had been improperly influenced and would refer to the Federal Court that I had been improperly influenced).

[59] As to Kailash’s reference in its September 2020 submissions to the judgment of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2020] FCAFC 122, Mr Patial submitted that in the subsequent Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1 (“Personnel”) the High Court decided that the second appellant was the employee of respondent for purposes of the Act. Mr Patial submitted that the Small Business Fair Dismissal Code (“Code”) is not “a blanket to involve the juniors like me in fraudulent activities like misleading the Australian Government, Department of Home Affairs”.

[60] Mr Patial submitted that:

•  Ms Christie was dishonest throughout the proceedings while acting for Mr Pall and Kailash, she has no credibility, and the Commission should put no weight on her evidence and her evidence should be disregarded;

•  Kailash and their representatives, Mr Pall and Ms Christie, provided false statements to the Commission;

•  Mr Troy Plummer and Ms Christie had filed the responses and submissions to the Commission, which have false and incorrect information - they threw fabricated unfounded allegations against him and prejudiced the Commission;

•  under s.319 of the NSW Crimes Act 1900, a person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years (and, accordingly, the matter should be referred to the Federal Court);

•  the Full Bench in the appeal also found that the arrangements between Kailash and himself were contrary to the Legal Profession Uniform Law; and

•  the Agreement for General Use was a sham contract (and, accordingly, the matter should be referred to the Federal Court).

[61] As to the costs application, Mr Patial submitted that as per s.611(1) of the Act, a person must bear the person’s own costs in relation to a matter before the Commission; and as per s.611(2) his claim is not vexatious or unreasonable though it is a fight to seek justice against unfairness. In conclusion, Mr Patial identified that the orders he seeks are that the costs application should be dismissed. Otherwise:

•  his application for an unfair dismissal remedy should be reheard, de novo;

•  the previous decision dismissing his application for an unfair dismissal remedy should be revoked under s.603 of the Act, because of the miscarriage of justice;

•  the matter should be referred to the Federal Court for directions to save the Fair Work Commission’s fairness and integrity;

•  to save the integrity of the legal system, Ms Christie’s, Troy Plummer’s and Employsure’s conduct must be referred for investigation to the legal bodies of Australia, including, but not limited to, the Law Society of NSW and the Law Society of Victoria; and

•  to save the integrity of the legal system and the Commission’s fairness and integrity, a proper inquiry should be made against Employsure to investigate whether the Employsure employees were/are representing the clients with/without having a right to practise and representation at the Commission or other tribunals.

Kailash’s reply submissions

[62] In reply, Kailash submitted that its submissions should be read in conjunction with its initial costs submissions and restated the bases upon which it is seeking a costs order. Kailash seeks an order for costs against Mr Patial pursuant to s.400A and s.611 of the Act on the grounds that the unfair dismissal application: (a) entailed unreasonable acts or omissions which caused Kailash to incur costs; and/or (b) was brought vexatiously; and/or (c) was brought without reasonable cause.

[63] Kailash submitted that in his written materials and cross-examination of Ms Christie, Mr Patial had failed to demonstrate any intelligible response to the costs application. Instead of engaging with the relevant questions for determination by the Commission, Mr Patial had used the opportunity to re-prosecute his original application, which has been well-settled and dismissed on appeal, and to cast wide-ranging aspersions against all parties, including the Commission. Despite being warned at the hearing on 23 March 2022 by the Commission not to seek “to reagitate findings or observations that I made in my decision”, Mr Patial’s reply submissions dated 24 February 2022 and 6 May 2022 did just that. The volume of irrelevancies in Mr Patial’s submissions are too lengthy to be catalogued; and responding to each immaterial submission is not a task that is in the interest of Kailash, nor will it assist the Commission.

[64] Kailash denied in toto the myriad of allegations and aspersions cast against Mr Pall, Mr Plummer, Ms Christie, Ms Kaur and the Commission in Mr Patial’s materials. Kailash’s decision not to address any particular allegation should not be taken as an admission of the allegation. The absence of such responses is merely a function of there being too many to respond in kind. Further, the vast majority of Mr Patial’s submissions bore no relevance to the proceedings. Any failure to respond to any particular “irrelevant” submission should not be considered an acceptance of those submissions by Kailash. The 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.

[65] Kailash noted that Mr Patial made allegations of improper conduct by Kailash and Kailash’s representatives. Though not a complete record, Kailash noted that Mr Patial variously had made allegations of:

•  Mr Plummer and Ms Christie making false and misleading statements to the Commission, committing perjury, and prejudicing the Commission;

•  Ms Christie providing false statements and submissions, coercing witnesses to provide false evidence, acting dishonestly, intentionally misleading the Commission, and tampering with evidence;

•  Mr Pall providing false evidence to the Commission and perjuring himself;

[66] Kailash reiterated that it denies in toto these allegations. Kailash submitted that no evidence has been provided in support of the allegations; as such, they are unfounded and baseless. Kailash took particular issue with the fact of an admitted solicitor of the Supreme Court of NSW making such allegations against his colleagues and parties to the proceedings.

[67] The question of what, if any, consequences flow for Mr Patial from his actions will be a relevant question for the Law Society of NSW. However, it is addressed here for two reasons. First, the allegations made by Mr Patial are examples of his vexatious conduct and support the ordering of costs against him pursuant to s.611(2)(a) of the Act as set out in Kailash’s initial costs submissions. 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”. Second, the making of unwarranted allegations of fraud by a solicitor supports the finding of costs. Mr Patial’s allegations are the equivalent of allegations of fraud. As a matter of principle, an allegation of fraud when there is no factual basis for it is sufficient to constitute a serious dereliction of duty or serious misconduct by a solicitor which will enliven the jurisdiction to order costs against the solicitor: White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 at 251 and 252 (where indemnity costs were ordered to be paid personally, specifically because of the unjustified and careless allegation of fraud made in that case). On the basis that Mr Patial made unfounded allegations amounting to allegations of fraud, amongst other things, and has openly admitted to acting vexatiously in bringing the proceedings, Kailash submitted that costs should be awarded in its favour.

[68] As to Mr Patial’s submission that Kailash improperly filed the costs application on the basis that Ms Christie is not a solicitor, paid agent or legal consultant, Kailash submitted that Ms Christie gave evidence that she is not a solicitor, but is a paid agent and her position description is that of Legal Consultant; and that the Commission accepted that Ms Christie appeared as a paid agent. Kailash denied it had acted improperly in bringing the costs application and that the term “solicitor” is interchangeable with any person mentioned at s.596 of the Act. Kailash submitted: (a) s.403 of the Act states that a schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under s.400A or s.611 of the Act; and (b) for s.403 of the Act, the prescribed schedule is set out at Part 3-2 of the Regulations, particularly reg.3.08. Regulation 3.08 provides that if the Commission considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who is not a solicitor, but is mentioned in s.596 of the Act. Section 596 of the Act relates to representation by lawyers and paid agents, and provides that the Commission may grant permission for representation by a lawyer or paid agent. On 6 October 2020, the Commission granted Ms Christie permission to represent Kailash. As confirmed at the hearing on 23 March 2022, permission has not at any point been revoked. Kailash submitted that it is, therefore, valid for Kailash to seek costs pursuant to reg 3.1 and to seek the solicitor rate. Furthermore, Kailash submitted that it is valid to use the term “solicitor” interchangeably with the term “paid agent” in the costs application and submissions. Kailash submitted, that for these reasons, the costs application has been validly brought in accordance with the Act and the Regulations.

[69] To the extent Mr Patial submitted that Kailash had improperly filed the costs application on the basis that the use of the phrase “higher discretionary rate” does not, verbatim, replicate the wording set out at Schedule 3-1 of the Regulations, Kailash submitted that the phrase “higher discretionary rate” is mere shorthand and has been used to paraphrase the precise wording of Schedule 3-1 of the Regulations, which permits the Commission to award costs “at the discretion of the FWC”. Ms Christie’s evidence at the hearing on 23 March 2022 was that the terminology is shorthand and that Kailash’s objective in bringing the application is to secure an award of costs against Mr Patial. The Commission confirmed that it is not expected for a cost applicant to directly replicate words from legislation/regulations in bringing an application. Kailash submitted that this matter is irrelevant to the costs application itself and, in any event, would be relevant only to the assessment of costs, should they be ordered, not the consideration as to whether an award of costs should be made. Kailash submitted that, for these reasons, the costs application has been validly brought in accordance with the Act and the Regulations.

[70] Kailash noted that its costs application seeks costs associated with the preparation for the hearing conducted before the Commission in 2021, including drafting and settling witness statements on instruction of Kailash. Mr Patial submitted that Ms Christie acted improperly in taking instruction in relation to and drafting witness statements of Kailash’s witnesses. As to that Kailash maintains its vociferous objection, as raised by Mr Plummer during the proceedings on 23 March 2022, to the allegation Kailash, its witnesses, or its representatives having engaged in witness tampering or improper conduct. Further, Kailash submitted that the act of a solicitor or paid agent taking instructions from a client and preparing a draft witness statement for review, approval and witnessing is a commonplace, ordinary and unexceptional task of a representative. In so submitting, Kailash referred to comments I had made to Mr Patial during the hearing, including: “… You know. You’re a solicitor. You’ve got your own firm I understand. … That’s what solicitors and paid agents do. … They draft witness statements based on discussions or written instructions by clients or witnesses … Mr Patial, I reiterate it is the everyday experience that solicitors and paid agents draft documents in draft form on behalf of witnesses and clients. I don’t understand what point is being made about it.”. Kailash submitted that Mr Patial’s objection to its representatives performing their duties, which are the same as that likely performed by Mr Patial himself in his ordinary course of business, was “inexplicable and bewildering”.

[71] Kailash submitted that the submissions made by Mr Patial on the question of witness statement preparation are irrelevant to the proceedings, in so far as they did not relate to matters relevantly before the Commission - and will only be relevant to the assessment of costs, should such orders be made. Kailash made similar submissions in relation to other aspects of Mr Patial’s reply submissions disputing the ordering of costs as sought in the costs application. That is, Kailash submitted that the objections raised by Mr Patial are relevant to the assessment of costs, not the award of costs; and the relevant question currently before the Commission is whether costs should be award in favour of Kailash. Kailash again referred to comments made by me during the costs hearing that “… [t]he matter before me at this point is whether costs should be awarded, that is, the question of whether it is appropriate to order costs. It at least appears to me that the types of matters that you [Mr Patial] are presently raising with Ms Christie go to the assessment of costs, and that would be the type of matter that might be - if it was the case that there was a finding that costs should be ordered on either of the two [sic] alternative bases that are proposed, that these are really assessment-type questions, and I am not at the assessment stage”. As to that, Kailash submitted that, should the Commission award costs, matters as to the assessment of costs will be addressed in due course.

[72] Kailash turned to Mr Patial’s submission/assertion that Ms Christie had tampered with evidence attached to her witness statement, as some of the attachments did not include Ms Christie’s company email signature block. Kailash noted that Mr Patial did not put allegations to Ms Christie of evidence tampering when given the opportunity, during the hearing on 23 March 2022. On this basis, Kailash sought that the Commission disregard all Mr Patial’s allegations and submissions surrounding evidence tampering related to Ms Christie’s emails. Regardless, Kailash categorically denied all allegations of evidence tampering and submitted that there is a simple and logical explanation for any discrepancies in the email attachments filed in the proceedings and the emails received by Mr Patial – in circumstances where it is a function of Employsure’s email system that company email signatures are appended to emails only when the email is sent from the company server. Emails stored locally on Ms Christie’s email account do not have the company email signature appended, as that occurs only when the email is sent and leaves Ms Christie’s email account. In any event, the content of the emails referred to in Mr Patial’s submissions is identical to those filed in support of the outline of submissions.

[73] In noting that I had listed the matter for the purpose of allowing Mr Patial to cross-examine Ms Christie, Kailash noted that that hearing was conducted at the request of Mr Patial. Kailash submitted that, in his additional reply submissions, Mr Patial did not synthesize or draw conclusions from the evidence in the hearing 23 March 2022 and (relevantly) only referred to the hearing in so far as he disputes the assessment of costs. Kailash submitted that Mr Patial has not demonstrated any benefit gleaned from that and it follows that the hearing “was a patent misuse” of the Commission’s time, Ms Christie’s time, and the parties’ time. In such respects, Kailash submitted that the cross-examination and testimony which transpired at the hearing is demonstrative of Mr Patial’s general unreasonable acts or omissions – and referenced Mr Plummer’s submission at the hearing that “… the conduct that Mr Patial is now engaging in is exactly why we are dealing with this costs application”. Kailash restated its submissions as set out in its initial costs submissions and added that examples of Mr Patial’s unreasonable conduct on 23 March 2022 included:

•  agitating questions of permission for representation, which had already been addressed;

•  repeatedly asking Ms Christie questions which are already in evidence, including her name, occupation and qualifications;

•  asking questions which were already matters of public record;

•  repeatedly asking the same question regarding the application of the Regulations;

•  questioning Ms Christie on the minutia of cost assessments, despite repeated warning from the Commission that such questions were not relevantly before her during the hearing;

•  being directed not to ask questions which are misconceived, but continuing to do regardless; and

•  asking questions regarding matters which had already been disposed of by way of findings by the Commission.

[74] Kailash reiterated its submission that Mr Patial has behaved both vexatiously and unreasonably throughout the proceedings. In as much as Mr Patial had referred to recent decisions of the High Court in Personnel and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, Kailash made submissions around the legal effect of those judgments in relation to the nature of independent contractor arrangements. Kailash submitted that, paradoxically, Mr Patial’s submissions are further evidence of Mr Patial’s vexatious character and unreasonableness, for reasons including that Mr Patial:

•  failed to address the applicability of the recent High Court judgments in his reply submissions;

•  did not address how the judgments relate to the assessment of costs; and

•  appeared to re-argue his original application, despite having already lost at first instance and on appeal and, even if that was Mr Patial’s intention, he did not articulate how the judgments relate to the first instance decision and his appeal.

[75] Kailash submitted that the propensity of Mr Patial to cherry-pick headline issues, without a trace of analysis or nuanced application to the questions currently before the Commission, is demonstrative of his persistent vexatious and unreasonable use of Commission’s and the parties’ time. Moreover, the unreasonableness of Mr Patial’s continued prosecution of his original application is made more significant given his legal qualifications and admission as a solicitor in NSW. Kailash submitted that Mr Patial’s reply submissions dated 6 May 2022 comprise further evidence of Mr Patial’s unreasonableness and vexatious conduct, such as to weigh in favour of the ordering of costs.

[76] In drawing towards a conclusion in its reply submissions, Kailash restated the nature of the orders sought and further submitted, that in the main, it denies that the orders sought by Mr Patial could be made by the Commission. Kailash submitted that the Commission is not capable of making orders in respect of the costs application to: re-hear the first instance matter by way of a de novo hearing; revoke the first instance decision; and/or refer the matter to the Federal Court.

[77] In relation Mr Patial’s request for a stay of proceedings, Kailash submitted that a further stay of proceedings is unnecessary and unjustified in the circumstances because: (a) the Commission has sole jurisdiction on the question of costs in this matter; (b) the question before the Commission is discrete and Kailash is entitled to have its application brought to finality, without further delay; (c) the proceedings before the Federal Court have no bearing on the matters before the Commission; (d) Mr Patial has not provided any justification for a stay of proceedings, beyond the assertion that one should be made, and the Commission should not consider such a request without justification; (e) Mr Patial has not demonstrated he has suffered any prejudice in the proceedings before the Commission and the Federal Court running concurrently; (f) notably, Mr Patial is the original applicant in both jurisdictions. Encapsulated, Kailash submitted that, in the interests of fairness, Kailash is entitled to bring its costs application and have the matter brought to finality following what have been elongated proceedings and an unsuccessful appeal to the Full Bench of the Commission brought by Mr Patial.

[78] Rather than acceding to Mr Patial’s various applications, Kailash submitted that the Commission should orders costs on the terms it had outlined – being a costs order against Mr Patial pursuant to s.400A(1) and s.611(2)(a) of the Act, on an indemnity basis and in the amounts set out in the costs application and submissions; or, in the alternative, a costs order against Mr Patial pursuant to s.400A(1) and s.611(2)(a)of the Act, on a party/party basis again in the amounts set out in the costs application and submissions.

Consideration

[79] The basis upon which costs are sought by Kailash against Mr Patial is set out in the preceding summary/overview of the submissions in relation to s.400A(1) and s.611(2)(a) of the Act on an indemnity basis or, in the alternative, on a party/party basis.

[80] Section 400A reads:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[81] Section 611 reads:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[82] It is relevant also to reproduce other provisions, namely s.403 of the Act (concerning the schedule of costs) and reg.308 of the Fair Work Commission Regulations 2009. Section 403 reads:

“403 Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

(a) under section 611 in relation to a matter arising under this Part;

(b) under section 400A or 401;

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 400A or 401, the FWC:

(a) is not limited to the items of expenditure appearing in the schedule; but

(b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

[83] The associated reg.3.08 of the Regulations reads:

“3.08 Schedule of costs

(1) For subsection 403(1) of the Act, the schedule of costs set out in Schedule 3.1 is prescribed.

Note 1: Under subsection 403(2) of the Act, in awarding costs, the FWC is not limited to the items of expenditure mentioned in Schedule 3.1. However, if an item of expenditure is mentioned in Schedule 3.1, the FWC must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item.

Note 2: An application for an order for costs must be made in accordance with the procedural rules.

(2) The FWC may allow the costs of briefing more than one counsel only if the FWC certifies that the attendance is necessary.

Note: It is likely that certification under subregulation (2) would occur only in relation to a very large or complex case.

(3) If the FWC considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who:

(a) is not a solicitor; but

(b) is mentioned in section 596 of the Act.

Note: Section 596 of the Act sets out who may represent a party to a proceeding before the FWC.

(4) A bill of costs must identify, by an item number, each cost and disbursement claimed.

(5) In exercising its discretion under item 1002 of Schedule 3.1, the FWC must have regard to commercial rates for copying and binding, and is not obliged to apply the photographic or machine‑made copy costs otherwise allowable in the Schedule.

(6) …”.

[84] To the extent that reg.3.08 refers to s.596 of the Act, I will partly reproduce that section for completeness concerning the framework. Section 596 deals with being represented in a matter before the Commission. Relevantly, it reads:

“596  Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a)  it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b)  it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)  it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(3) …

(4) …”.

[85] Schedule 3.1 of the Regulations sets-out, over fifteen Parts, various item numbers identifying matters for which a charge may be made and the associated charge, as conditioned by s.403 of the Act.

Jurisdiction to make a costs order – preliminary matter – work undertaken by Ms Christie

[86] As may be seen from the outlines of submissions in the decision, Mr Patial contended that the costs application was not available in circumstances where Ms Christie was not a solicitor and nor, he submitted, was she a paid agent. Mr Patial submitted that Ms Christie was not a paid agent or a lawyer because she was a law graduate, working as an employee of the law firm Employsure and was covered by the Legal Services Award. In those circumstances, the effect of Mr Patial’s submissions around such matters was that there was no proper basis upon which Kailash’s costs application could proceed to the extent it referred to the costs of the work performed by Ms Christie, as identified in the schedule of costs in relation to the costs application. As to these submissions, Kailash referred to the interaction of s.596 of the Act and reg.3.08(3), i.e., if the Commission considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who: (a) is not a solicitor; but (b) is mentioned in s.596 of the Act.

[87] Ms Christie is a law graduate but was not admitted as a solicitor around the time relevant to the work undertaken for Kailash in relation to Mr Patial’s application for an unfair dismissal remedy. There is no issue that Ms Christie was not a solicitor, i.e., she was not, within the meaning defined in s.12 of the Act, a person who was admitted to the legal profession by a Supreme Court of a State or Territory. For the avoidance of doubt, given Mr Patial’s submissions that Ms Christie intentionally misled the Commission by suggesting she was a lawyer/solicitor, she did nothing of the sort. Indeed, I sought clarification from Ms Christie around the outset of the first listing on whether she was a lawyer/solicitor; she confirmed to me she was not a solicitor, or at least not yet. As an aside, Mr Patial later submitted, and in a somewhat contradictory way, that Ms Christie (also) intentionally misled the Commission by stating that she was a paid agent.

[88] In the work Ms Christie undertook for Kailash and billed to it (or was billable to it) for her services as an employee of Employsure, Ms Christie was a paid agent for the purposes of the Act and the Regulations. I reject Mr Patial’s submissions to the contrary; there is nothing in Mr Patial’s submissions that would lead me to the view that the costs application could not proceed because of Ms Christie’s involvement in the work undertaken. Self-evidently, the work undertaken by Ms Christie/Employsure for Kailash was not being undertaken for free. It was work which was chargeable to Kailash by her employer, Employsure, and, thereby, Ms Christie was paid agent for the purposes of the Act and the Regulations.

[89] Moreover, in the first listing before me in relation to Mr Patial’s substantive application, I granted permission for Kailash to be represented. I was relevantly satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The permission for Kailash to be represented was never revoked in relation to the application before me (if it be the case that, once permission has been granted, that permission can be revoked). While permission was granted for Kailash to be represented over the objection of Mr Patial, he did not lodge an appeal about the granting of permission for Kailash to be represented (albeit he did continue to agitate that matter, including seeking to argue in the costs application that permission should not have been granted for Kailash to be represented in the first place). The fact of the matter is that permission was granted and, in consequence, costs associated with representation were incurred by Kailash. I accept Kailash’s submission that it is, therefore, valid for Kailash to seek costs (and to seek the claimed rates, being a matter to which I will return, Mr Plummer, who is a solicitor, also shared representation with Ms Christie in relation to certain matters).

Jurisdictional thresholds concerning costs applications

[90] Relevantly, s.400A of the Act provides that, as to unfair dismissal applications, the Commission may make an order for costs against a party for costs incurred by the other party if the Commission is satisfied that the relevant party caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the application.

[91] I am satisfied that the pre-conditions for the making of an order for costs under s.400A have been met because I am satisfied that Mr Patial engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and I am satisfied that such acts or omissions by Mr Patial caused Kailash to incur (unnecessary) costs. As the statutory preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.

Unreasonable “act”/“continuation”

[92] I will deal first, in reverse statutory order, with the “continuation” aspect of s.400A of the Act. Part of Kailash’s case around this turned-on Mr Patial’s failure to agree to terms of settlement that could have led to the application being discontinued. Shortly stated, while there was agreement on a financial amount to settle the unfair dismissal application (which, in turn, would have resulted in a discontinuance of the application rather than its continuation), Mr Patial would not sign terms of any description (including in relation to the release of any other claims he may have, including with carve-outs).

[93] The context in which Mr Patial advanced his case before me included: (a) repeated allegations about alleged underpayments under invoices to which he asserted entitlement to payment for work undertaken not only for Kailash, but also for entities with which Mr Pall was associated; and (b) on the other hand, repeated references to matters associated with asserted entitlement to employee-type payments/entitlements.

[94] I am not satisfied that Mr Patial engaged in an unreasonable continuation of the unfair dismissal application by failing to settle the matter on terms that would have included full or partial releases, because I accept it is the case that he considered that he had substantial alleged underpayments and he did not want to relinquish any form of claims in relation to that matter and other matters. I might note that, while it is statistically common for terms of settlement to include, in effect, full mutual releases, it is also the case that it is not uncommon for settlements to refer only to the unfair dismissal application itself and/or to have other carve-outs.

[95] I find that there was no unreasonable continuation of the application brought about by Mr Patial’s failure to agree to a settlement proposal (albeit it would never have been the case that a matter of this nature would have been settled without at least some form of signed terms – but Mr Patial declined even that). Kailash’s submissions in this respect are rejected on the unreasonable act/continuation aspects in this particular respect.

Unreasonable “act”/“conduct”

[96] While I do not accept there was an unreasonable continuation of the matter in circumstances of Mr Patial’s failure to agree to a settlement which would have included the signing of at least some form of terms, I am satisfied, indeed well-satisfied, that Mr Patial’s acts as they constitute the “conduct” aspect of s.400A of the Act has been made out. I begin by noting that this was an application by Mr Patial for an unfair dismissal remedy. Kailash objected to the application on the threshold jurisdictional ground that Mr Partial was not an employee who had been dismissed. In the event that its primary jurisdictional objection did not succeed and Mr Patial was found to have been an employee who had been dismissed, Kailash made alternative submissions about: (a) the Code; and (b) in the further alternative, that if the Code did not apply, why the dismissal was not unfair in the context of s.387 of the Act. These are the conventional, relevant matters that are to be considered and determined in relation to Mr Patial’s application for an unfair dismissal, given the jurisdictional objection and the fact that Kailash was a small business employer.

[97] Despite the conventional, relevant matters that were to be addressed in relation to the application for an unfair dismissal remedy, Mr Patial showed an inability to focus on matters of relevance to the application for an unfair dismissal remedy in pursuit of, instead, using the application as a vehicle to, among other matters, assert claims to various payments in a way that had no relevance, none whatsoever, to what was relevantly before me in relation to the application for an unfair dismissal remedy. As I have noted earlier, Mr Patial simultaneously asserted entitlement in the proceedings to payment of invoice amounts as a contractor, not only in relation to services or work said to have been undertaken for Kailash but also for other entities associated with Mr Pall; and, separately, as what he contended was as an offer of employment to him as an employee and/or as an employee purportedly covered by the Legal Services Award. This was reflected throughout Mr Patial’s oral submissions, throughout his written submissions, and throughout the cross-examination questions he put in the case. Mr Patial’s conduct in such respects was compounded by repeatedly filing, without leave or directions, and/or seeking to have considered multiples of additional materials that were not filed and served in accordance with the timeframes specified in the directions.

[98] A case that might reasonably have been conducted in a day (or less), spread to no fewer than four days against the background of the discursive nature of the matters Mr Patial sought to raise and have addressed in the case, and in a highly-repetitive way (albeit time was spent on one of the days seeking to settle the matter, although resulting in a situation where Mr Patial would not also agree to signing any terms); then there were closing written submissions which repeatedly raised non-relevant as well as new matters and/or allegations. Mr Patial’s approach to the case was despite repeated advice and instruction from me to him about attending to relevant matters in the case he was presenting and in the questions he was putting in his cross-examination. As a corollary to this prolonging of the case over four days (plus all the written submissions), Kailash’s costs were above and beyond what might ordinarily be expected to occur if it had not been for the protraction of the proceedings brought about by Mr Patial’s acts of unreasonable conduct over the course of the proceedings (including failing to agree to an unremarkable proposed statement of agreed facts prepared by Employsure/Kailash which may have given focus for Mr Patial on matters that were relevant for determination). I might interpose to note that in the opening segments of his written submissions in relation to the costs application, Mr Patial himself identified matters in the following way: “I assert that I was unfairly dismissed” and that the application he filed “was straightforward concerning unfair dismissal and unpaid wages.” (my emphasis) Thus, 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.

[99] Kailash submitted that Mr Patial’s behaviour/conduct was particularly unreasonable given his occupation as an admitted solicitor in New South Wales. Kailash submitted that as an admitted solicitor, Mr Patial, ought to have: brought his case efficiently and with greater sensitivity to the parties’ and Commission’s time; had an appreciation of the timeline for filing materials and procedural regularities associated with conducting proceedings in the Commission; been adept at narrowing the issues in dispute and focussing the Commission’s attention on relevant matters and only those issues which could be determined by the Commissioner. While I accept these submissions at a general level and find it surprising that given Mr Patial is a solicitor (now with his own firm) that the case was advanced in a way that resulted in unnecessary and unreasonable prolongation, nonetheless, I consider that I should treat Mr Patial as I would any other respondent to a costs application - and not hold him to any different standard (albeit there certainly is authority for the proposition that different considerations may apply). As such, I approach the matter in that way and conclude that the unreasonable “conduct” aspect of s.400A of the Act has been made out as to Mr Patial’s conduct - just as I would if Mr Patial had been a self-representing (non-solicitor) party whose case had similar characteristics to those advanced by Mr Patial.

[100] Kailash submitted that “… it is notable that [Mr Patial’s] behaviour was so egregious and omnipresent throughout proceedings, it is difficult to account for all instances of unreasonable behaviour”. I accept Kailash’s submission in such respects. For that reason, I will not attempt to catalogue the many instances. It suffices to say that, in the initial decision, I characterised matters in the following way – including by reference to the “manifestly irrelevant” matters raised in Mr Patial’s case:

“[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 the applicant and/or matters arising in his unfocussed cross-examination of the respondent’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. Delays were compounded by the applicant seeking to have admitted into evidence materials he filed and served well outside the timeframes specified in the directions. Moreover, the Law Society of New South Wales (the “Law Society”), somewhat irregularly I thought, sent directly to me unsolicited correspondence about certain matters part-way through the hearing. The applicant confirmed that this correspondence from the Law Society had been sent to me at his behest.”

The s.611 application

[101] Kailash’s application for costs was also advanced, in the alternative to its submissions concerning s.400A, in the context of the costs provisions in s.611 of the Act. The primary statutory position in s.611 is that parties bear their own costs in proceedings before the Commission, a matter emphasised in Mr Patial’s submissions in opposing Kailash’s costs application. However, a costs order concerning some or all costs may be made if (relevantly) the Commission is satisfied that the application was made or responded to vexatiously or without reasonable cause.

[102] Kailash referred to what North J said in Nilsen (about provisions similar to s.611 of the Act in precursor industrial legislation), including that a question is whether the proceeding was instituted vexatiously, looking to the motive of the applicant in instituting the proceeding, and having a context which requires the concept to be narrowly construed. As to that, North J said that “A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage …”. Among other matters, Kailash submitted that:

•  Mr Patial instituted and prolonged the proceedings to harass it;

•  the unfair dismissal application was demonstrative of Mr Patial’s general intention to annoy Kailash, or drown Kailash in litigation and/or administrative review processes (noting that the unfair dismissal application was but one of the proceedings and complaints commenced by Mr Patial against Kailash); and

•  Mr Patial’s “openness” as to ongoing and future claims against Kailash was admitted by him in the proceedings.

[103] Kailash also referred to comments I made in the proceedings and in the decision, including paragraph [31] as it concerned Mr Patial’s letter setting out various demands, and various invoices and claims for reimbursements calculated by him at $93,736.58; and Mr Patial’s advice that when Mr Pall had attended to the demands and made the payment “only then” would he “handover the office items to you, such as case files, keys, access card.”

[104] To the extent that Kailash addressed some developments in the correspondence which followed the dismissal of the unfair dismissal application and Kailash’s filing of its costs application, which Kailash described as “threatening to appeal the decision and institute further litigation if the Costs application was not discontinued”, those developments are not relevant to the question of whether the application for an unfair dismissal remedy itself was made vexatiously. That said, the contents and tenor of the correspondence do tend to give some colour and flavour to Kailash’s submissions about the alleged vexatiousness in lodging the initial application, and its particular references to rectifying the alleged underpayments in connection with the steps Mr Patial foreshadowed in relation to both Mr Pall and his Employsure representatives, as well as to “revenge” dragging Mr Pall “deep down in a mess …”.

[105] Kailash submitted that, from the outset of the proceedings concerning the substantive application, Mr Patial deliberately sought to harass it. Kailash further submitted that Mr Patial’s initial conduct, immediately following the termination, particularly in respect of “the unfair dismissal application and the baseless invoices contained within, have been made for the predominant purpose of pestering and belligerently wearing down” Kailash and Mr Pall. Kailash submitted that Mr Patial had “barraged” Mr Pall over four days of hearing and cross-examination, had made volumes of unnecessary and out-of-time submissions, and had threatened further proceedings (and had, in fact, lodged his appeal against the dismissal of the unfair dismissal application and commenced proceedings in the Federal Court).

[106] To the extent that Mr Patial’s conduct, in bringing the unfair dismissal application and demanding payment of invoices and alleged wages, was described by Kailash as having been “sparked by an affront to his character and professional identity” and that this “protracted and arduous saga has been driven by feelings of humiliation for the sole purpose of exacting revenge and harassing” Kailash until such a time as Mr Patial “perceives his reputation and honour is restored”, I accept that this would not be a proper basis for commencing the unfair dismissal application and that such purposes are antithetical to the purposes of the Act and would be a misuse of Commission processes. However, I do not know what Mr Patial’s “feelings” were, except as outlined in his evidence in the proceeding and in his submissions both in relation to the initial application and the costs application. 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.

[107] Relatedly, but again in the alternative, Kailash sought an order for costs pursuant to s.611(2)(a) of the Act on the basis that Mr Patial brought the application for an unfair dismissal remedy without reasonable cause – with the cause being for the purpose of obtaining remedies which variously sit outside the scope of powers established in ss.390-392 of the Act. I accept Kailash’s submission that Mr Patial’s pursuit of alleged unpaid invoices and unpaid wages throughout the proceedings demonstrated his intention to misuse the Commission’s process for his ulterior purpose of obtaining payment of amounts allegedly due to him; and I also accept Kailash’s submission that this was not a reasonable basis for making and sustaining the unfair dismissal application. It may be noted that in the appeal against my decision, the Full Bench noted that Mr Patial did not challenge my finding about the dismissal of his application on the conduct-related issues which engaged the Code (if he had been an employee).

[108] (Costs can also be ordered if the Commission is satisfied that it should have been reasonably apparent to the party that the application/response to the application had no reasonable prospect of success. While Kailash did not advance its costs case on the “no reasonable prospect of success” component of s.611 on any merits-type grounds, I would have favourably considered any such submission if it had been made given the circumstances surrounding the termination of the relationship itself, i.e., if it was the case that Mr Patial was found to have been a dismissed employee, the application for an unfair dismissal remedy was without any merit given matters such as the necessity for police involvement to have him escorted from Kailash’s premises and Mr Patial’s failure to return files concerning Kailash’s clients at a time before the relationship was terminated by Mr Pall.)

[109] I have considered the reasons advanced by Mr Patial in his submissions about why costs should not be ordered against him in this case, but I am not persuaded by them. Mr Patial’s submissions in opposition to the costs application were not responsive or relevant to the determination of the provisions concerning ordering costs under the Act, or the authorities around such matters. Rather, Mr Patial’s submissions largely comprised reasons why the findings in my initial decision were incorrect and why the Commission had no supporting evidence in relation to the findings I made and why the decision should, by one means or another, be revisited. 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. I should say, that as to such matters, I had some genuine hesitation in airing the allegations in the summary of the submissions in this decision. In the end, I decided to include them, but only so as to give some form and context to the extravagance of ongoing allegations that Mr Patial raised not only about Kailash’s two witnesses, but about its representatives. For example, in the initial decision, I wrote as follows:

“[16] Fifth, the applicant made various submissions concerning two representatives of the respondent (Sarah Christie and Troy Plummer of Employsure Law Pty Ltd). These submissions by the applicant included, but were not limited to, extravagantly worded allegations of “perjury” by them - on account of what was contained in documents they drafted on instructions or with their client’s approval, namely, the Form F3 – Employer response to unfair dismissal application and the written outlines of submissions. Apart from the self-evident lack of appreciation by the applicant of what constitutes perjury (for neither Ms Christie nor Mr Plummer gave evidence in the proceedings), I accept the submissions advanced in the respondent’s closing submissions, which highlighted various extracts of what the applicant wrote about the two representatives, that “the language used by the Applicant to describe the conduct of his learned colleagues is unbefitting of a qualified legal practitioner.” The applicant’s submissions indicated that, for his own part, he had put one of the representatives of the respondent on notice “for using the grouchy vocabulary against the Applicant to denigrate the Applicant’s character without providing any supporting evidence” (bold in original). The applicant’s submissions in such respects later continued that one of the respondent’s representatives “wrote the closing submissions in his whims and fancies and used his churlish vocabulary to denigrate the Applicant”.

[17] The respondent’s representatives did not misconduct themselves in any way over the course of the proceedings before the Commission. It was put in the respondent’s closing submissions that I should consider referring matters to the Law Society with respect to professional misconduct by the applicant, considering the nature of some of the matters addressed in the applicant’s closing written submissions. I do not propose to do so. If Ms Christie (who I gather is a paid agent, not a solicitor), Mr Plummer (who I gather is a solicitor) or Mr Pall (a solicitor) wish to pursue matters with the Law Society concerning the content of the applicant’s submissions in relation to them personally, that is a matter for them.”

[110] I reiterate the matters in the preceding paragraph as to my findings at first instance. It is unnecessary to deal with Mr Patial’s ever-expanding accusations again, made in an amplified way, which again include matters such as perjury, subornation of perjury, and evidence tampering. Specifically, as to Mr Patial’s submissions concerning the evidence of Ms Christie in relation to the costs application to the effect that Ms Christie has “no credibility”, was “dishonest”, that the Commission should place “no weight” on her evidence, and that her evidence should be “disregarded”, I reject those submissions (just as I reject the proposition that the Commission had been “improperly persuaded” or “improperly influenced”). Ms Christie’s evidence in relation to the costs application was accurate and well-supported by the annexures to her witness statement and, I might add, was consonant with matters of which I was aware over the course of the proceedings (albeit I was unaware of the post-decision communications, including those couched by Mr Patial in his correspondence to Mr Pall in terms of “revenge” and dragging Mr Pall “deep down in a mess” in relation to the costs application now before me). I do not consider it is necessary to address each and every matter, or the detail of them, as advanced by Mr Patial in opposition to the costs application – including, for example, his misplaced reliance on s.399A of the Act which turns on a misunderstanding of the operation of the provision.

[111] I do not propose to make any of the referrals that Mr Patial submitted should be made, for there is no basis to do so (even if I had the power to make some or all of those referrals).

[112] Mr Patial submitted that the determination of the costs application should be deferred pending the outcome of his Federal Court proceedings involving Kailash. As to that submission, I take notice of the judgment of Goodman J in Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662. That judgment was published on 9 June 2022 (being a date not long after the final round of written submissions had been received in relation to the costs application). A reading of the judgment indicates that Mr Patial’s proceedings in the Federal Court traversed matters that were repeatedly raised in the first instance proceedings before me concerning alleged underpayments, sham contracting, discrimination, stress and the like. The judgment referred to matters concerning the unfair dismissal application before me in which I had found the relationship between Mr Patial and Kailash was not one of employee and employer.

[113] The judgment of Goodman J contained passages including the following:

“37 It is clear from the decision of Commissioner McKenna that the existence of an employment relationship between the applicant and the first respondent was a central issue in the proceeding in the Commission and that this was considered in detail and decided adversely to the applicant in that proceeding.

The present proceeding

38 The Statement of Claim comprises 138 paragraphs and has the following structure:

(1) A. The Parties

(2) B. Mr Patial Employment with Kailash Lawyers

(3) C. Supervision Certificate

(4) D. Sham Agreement and Arrangement for Payments

(5) E. Unfair Dismissal

(6) F. Weekly Hours and Hourly Rate

(7) G. Final Pay

(8) H. Outstanding Wages

(9) I. Annual Leave

(10) J. Sick Leave

(11) K. Overtime

(12) L. Bonus Payments

(13) M. Superannuation

(14) N. Outstanding Payments for Additional Work including IT Services – Deepawali Event – Distributing Calendars – Assembling Office Furniture – Removing Office Furniture – Moving Office Files to Kennards Storage Box Wentworthville – Shifting Office Furniture – Continuing Professional Development Courses – Renewal Application Fees for the Office of the Migration Agent Registration Authority

(15) O. Workplace Discrimination – Workplace Harassment – Forcing the First Applicant – Junior Solicitor to Involve in Wrong Activities

(16) P. Psychological Stress

(17) Q. Alternative supervised legal training

(18) R. Particulars of Outstanding Wages, Entitlements, Payments and Compensation

(19) S. Common Questions of Law and Fact

39 This structure provides an impression the Statement of Claim is principally concerned with an alleged employment relationship between the applicant and the first respondent. That impression is confirmed upon closer reading of the Statement of Claim.

The case pleaded solely against the first respondent – Parts B to M and O

40 The case pleaded against the first respondent in Parts B to M and O (and which draws in part upon Part A) is, in summary, that:

(1) the first respondent was a National System Employer (Part A, [2]);

(2) on 15 April 2019 he was verbally hired by Mr Pall on behalf of the first respondent (Part B, [19]);

(3) his employment was subject to the National Employment Standards (Part A, [15]);

(4) the Agreement was a sham (Part D);

(5) his last day of employment was 26 August 2020 (Part C, [29]) on which date he was unfairly dismissed (Part E, [35]-[41]);

(6) he was entitled to be paid:

(a) wages (Part H, [46]-[47]);

(b) annual leave (Part I, [48]-[50])

(c) sick leave (Part J, [51]-[53]);

(d) overtime (Part K, [54]-[55]);

(e) bonus payments (Part L, [56]);

(f) superannuation (Part M, [57]);

(7) the following amounts are owed by the first respondent to the applicant:

(a) wages of $6,652.80 (Part R, [137.a]);

(b) annual leave of $7,375.85 (Part R, [137.b]);

(c) sick leave of $3,138.91 (Part R, [137.c]);

(d) overtime of $18,249.84 (Part R, [137.e]);

(e) bonus payments of $11,450 (Part R, [137.f]);

(f) superannuation of $9,747.19 (Part R, [137d]); and

(8) while he was an employee of the first respondent, the applicant was the subject of discrimination (Part O, [83]-[121]).

41 The above issues all depend upon the proposition that the applicant was employed by the first respondent. As noted above, that very issue was considered in detail and determined by the Commissioner adversely to the applicant.

42 If the applicant were allowed to re-litigate this issue, the first respondent 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 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 the applicant was an employee of the respondent in circumstances where that proposition was found to be false by the Commission is an abuse of process.”

[114] Among other outcomes, Mr Patial’s proceedings in the Federal Court against Kailah were dismissed as involving an abuse of process. (In passing, and with the benefit of hindsight, Mr Patial may have been better served accepting the settlement offer that was made in the proceedings before me, albeit, as I noted earlier, while there was agreement to an amount, Mr Patial would not sign terms because he wished to pursue other proceedings.)

Conclusion

[115] Costs orders in this jurisdiction are the exception rather than the rule, much less indemnity costs: see, for example, the discussion in Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2021] FWCFB 4970 and the authorities cited therein. However, I consider this is a case where an order for indemnity costs is appropriate. From the initiating process comprising the Form F2 application to the closing submissions, the substantial part of the case as advanced by Mr Partial was irrelevant in repeatedly raising superfluous matters. The scope of the matters that Mr Patial raised at length (and sought to have determined by the Commission, including seeking findings that were plainly beyond jurisdiction) were out of all proportion to the object of the Commission resolving the relevant issues in an unfair dismissal application with a standard jurisdictional objection.

[116] The evidence indicated that Kailash put Mr Patial on notice from an early stage that the remedies sought were outside the Commission’s jurisdiction and that if he continued to pursue his unfair dismissal application, including the remedies sought, Kailash would seek indemnity costs. Against my consideration of the background matters referred to in the materials in Kailash’s case, and my acceptance of (the bulk of) Kailash’s submissions in support of the costs application, I am satisfied that Kailash has made out its application for an order for indemnity costs. To avoid doubt, given my earlier consideration of the interaction of costs in relation to lawyers/paid agents, there appears nothing objectionable about the use of the solicitor rate in the schedule of costs compiled by Employsure in relation to work undertaken by Ms Christie. Moreover, I discern nothing that appears excessive or disproportionate in the costs in the schedule of costs that was submitted in connection with the costs application, albeit there may be scope for some refinement. Kailash’s costs incurred from after the date of lodgment of the application in responding to and defending the application brought by Mr Partial are appropriate in this matter.

[117] I strongly encourage the parties to approach the matter of the calculation of the final amount of costs in a professional, agreed way – to avoid incurring any further costs in disputation about the amount involved, particularly considering what I have said about there appearing to be nothing objectionable, excessive or disproportionate in the schedule of costs. If the parties are unable to agree, I foreshadow that, rather than the quantification of a costs order through, for example, a process akin to assessment, I would be inclined to make an order for a specified reasonable gross sum based on, I anticipate, page-limited short rounds of written submissions in terms to be determined if agreement is not reached.

[118] The matter is stood-over for approximately three weeks to allow the parties time to see if final costs can be agreed. Kailash is directed to file and serve advice by no later than 5.00pm on Tuesday, 9 August 2022 whether agreement has been reached. If agreement has not been reached, I will give consideration to the next steps.

COMMISSIONER

Appearances (for the costs application):

P Patial, applicant/respondent to the costs application, on his own behalf.
T Plummer of Employsure for the respondent/applicant on the costs application, Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants.

Hearing details:

2022.
Sydney/Melbourne (via Microsoft Teams).
23 March.

Final written submissions:

27 May 2022.

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