Patial, In the matter of an application for leave to issue or file [2023] HCATrans 95 (26 July 2023)

Last Updated: 26 July 2023

[2023] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S80 of 2023

In the matter of -

an application by PRATEEK PATIAL for leave to issue or file

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 26 JULY 2023, AT 10.00 AM

Copyright in the High Court of Australia
HER HONOUR: Pursuant to rules 6.07.3 and 13.03.1, I refuse the application for leave to issue or file the proposed application for a constitutional or other writ. I publish my reasons and direct that those reasons be incorporated into the transcript. The order of the Court is:

1. The ex parte application for leave to issue or file the application for a constitutional or other writ be refused.

I publish that order.

On 26 June 2023, the applicant attempted to file in the Registry of this Court a document described as an application for a constitutional or other writ. The first defendant named in the document was Kailash Lawyers Pty Ltd ACN 604 582 550 trading as Kailash Lawyers and Consultants and the second defendant was the Fair Work Commission. On 29 June 2023, Gleeson J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the document without the leave of a Justice of this Court first had and obtained. The applicant seeks that leave by way of an ex parte application pursuant to r 6.07.3 and accompanying affidavit, each lodged with the Court on 3 July 2023.

The document principally seeks orders respecting decisions of the second defendant, the Fair Work Commission. The applicant applied in the first instance, pursuant to s 394 of the Fair Work Act 2009 (Cth), for an unfair dismissal remedy. The first defendant, the respondent to those proceedings, contended that the applicant was not its employee. Commissioner McKenna accepted that contention and concluded on the facts of the case that the relationship between the parties was not that of employer and employee and dismissed the application^[1]. In particular, the Commissioner found that the relationship was governed by a document, referred to in the proceedings as “the Terms”, which the applicant himself had presented to the firm, and that the applicant had declined an offer of employment. Further and in any event, the Commissioner would have dismissed the application because the relationship was irreparably damaged and the applicant’s actions objectively gave cause for dismissal under the Small Business Fair Dismissal Code (Cth).

Permission to appeal, as required by s 604 of the Fair Work Act, was sought from a Full Bench of the Commission but was refused^[2]. No grounds for appeal were established, including an alleged denial of procedural fairness. The Full Bench concluded that it was not in the public interest to grant permission to appeal.

The other decisions of the Commission the subject of the document are two decisions in relation to costs, an application for a stay, and an appeal, requiring the applicant to pay $36,398.05 plus GST by way of costs^[3].

The applicant has made numerous unsuccessful attempts to have the matter considered by the Federal Court of Australia. An application seeking the issue of prerogative writs in relation to the substantive and costs decisions was refused under r 2.26 of the Federal Court Rules 2011 (Cth) as frivolous or vexatious; an application for an appeal against the substantive and costs decisions was refused under r 2.26; and a second application was also refused. An earlier application for judicial review of the substantive decisions had been refused.

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

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

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

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

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

Accordingly, I order that the ex parte application for leave to issue or file the application for a constitutional or other writ be refused.

Adjourn the Court.

AT 10.01 AM THE MATTER WAS CONCLUDED

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1. [1] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers & Consultants [2021] FWC 4167 at [34], [91]-[92].
2. [2] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers & Consultants [2021] FWCFB 6055 at [29]- [32].
3. [3] Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers & Consultants [2022] FWC 1449; Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers & Consultants [2022] FWC 2721; Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers & Consultants [2022] FWC 3199; Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2023] FWCFB 73.