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Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155 (25 August 2023)

Last Updated: 11 September 2023

FEDERAL COURT OF AUSTRALIA

Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155

Appeal from:	Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662 Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899
File numbers:	NSD 607 of 2022 NSD 626 of 2022
Judgment of:	RARES, JACKSON AND HALLEY JJ
Date of judgment:	25 August 2023
Catchwords:	PRACTICE AND PROCEDURE – abuse of process – where appellant brought proceedings against first respondent in Fair Work Commission for unfair dismissal under s 394 of Fair Work Act 2009 (Cth) – where Commissioner found appellant not employee and dismissed proceeding for want of jurisdiction and alternatively, if he were employee, appellant not entitled to any remedy for unfair dismissal – where Full Bench of Commission refused leave to appeal – where appellant commenced proceedings in Federal Court of Australia making claims under Act as employee on basis rejected by Commission – where respondents sought summary dismissal or orders striking out statement of claim – where primary judge struck out and removed statement of claim from Court file as abuse of process and granted limited right to replead – whether primary judge erred in concluding appellant not allowed to re-agitate employment issue as abuse of process – Held: appeal dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 394, 400(1), 725, 729, 733 Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 r 26.01
Cases cited:	Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 House v The King (1936) 55 CLR 499 Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 In the matter of an application by Prateek Patial for leave to issue or file  [2023] HCATrans 95  Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-243 Symes v Holbrook [2005] FCAFC 219 Walton v Gardiner (1993) 177 CLR 378
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	44
Date of hearing:	25 August 2023
Counsel for the Appellant:	The appellant was self-represented
Counsel for the Respondents:	Mr V Misra
Solicitor for the Respondents:	Kailash Lawyers and Consultants

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal on a party-party basis.

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal on a party-party basis.

REASONS FOR JUDGMENT
(Revised from the transcript)

THE COURT:

INTRODUCTION

1. These are, first, an appeal by leave limited to one ground, being whether the primary judge was correct to strike out and remove from the court file the statement of claim and grant only limited rights to the appellant to replead, and, secondly, an appeal against the costs order that his Honour made against the appellant in respect of the strike out and related orders. The dispute before his Honour related to the appellant’s claim that he was an employed solicitor of the first respondent’s practice, trading as Kailash Lawyers and Consultants. The second and third respondents were companies controlled by Amit Pall, the principal of Kailash Lawyers.

BACKGROUND

2. The appellant claimed that he had been unfairly dismissed in proceedings he brought in the Fair Work Commission. It was common ground that the appellant began working for Kailash Lawyers having negotiated with Mr Pall and entered into an agreement for general use on 17 April 2019 that recited relevantly:

2. Operative Provisions

(a) It is expressly understood and agreed between Prateek and Kailash that:

...

6. It is expressly understood and stated that the parties do not form an employer-employee relationship. Kailash do not owe any employer obligations towards Prateek including but not limited to remuneration, salary, superannuation etc. The pure and simple objective of this agreement for the parties is conduct and receive supervised training with certain benefits to both the parties arising out of this relationship.
7. To provide training, infrastructure and related resources, Kailash shall charge 60% of the gross professional fee (excluding disbursements) generated by Prateek up to the total income of $100,000 per annum. Should the fee grow above $100,000.00 per annum in the increments of $10,000, the Kailash percentage shall decrease to 50% of the gross professional fee (excluding disbursements) on anything above $100,000, in the increments of $10,000.

(emphasis added)

3. A Commissioner heard the dispute between the appellant and Kailash Lawyers for four days, in which both protagonists gave evidence. The Commissioner found as a fact that the appellant had proposed to Mr Pall that they enter into a contract for his supervised legal training on the basis of terms of his previous contract with another legal practice that became the substantive basis of the wording of the agreement. She found, having observed the appellant and his conduct over the course of the proceeding, that he was “assuredly ... not a person who otherwise would be susceptible to conduct in the nature of coercion, duress or similar”. The appellant confirmed that impression in presenting his appeals. The Commissioner found of concern that the appellant had made a number of very serious allegations. Those concerns are also reflected in the primary judge’s determination to order removal of the statement of claim from the Court file.
4. The Commissioner found that:
   • the appellant did not seek, and Mr Pall did not offer him, employment with the firm until about a year had passed, at which time she found that Mr Pall offered to make the appellant an employee, but that he refused;
   • there was a vigorous dispute on the evidence at the hearing between the parties on that issue, which the Commissioner resolved in favour of Kailash Lawyers;
   • the provisions of the agreement were genuinely reflective of the contract that the parties had made;
   • the appellant and Kailash Lawyers entered into arrangements:

squarely not intended by either of them to involve an employment relationship. Both the [appellant] and Mr Pall are solicitors. Even accepting the [appellant] was admitted as a solicitor only comparatively recently around the time the [agreement was] signed, I simply do not accept the [appellant] somehow naively or unwittingly was coerced into non-employment relationship arrangements under the [agreement] that he, I reiterate, unilaterally and personally had presented to Mr Pall. As noted earlier, the [appellant] also declined the offer of employment that was made to him in 2020.
(emphasis added)

• the appellant invoiced Kailash Lawyers, in accordance with cl 2(a)(vii) of the agreement, approximately monthly for a percentage of the professional fees that he had generated, using his Australian Business Number, that he had obtained in May 2014, which Kailash Lawyers paid and that those payment arrangements continued until the dispute arose very late in the last month of their relationship;
• in the first half of 2020, during the initial period of the COVID‑19 pandemic’s effects, while still in the contractual relationship with Kailash Lawyers under the agreement, the appellant also received, as owner of what he said was an investment business he operated at the same time, JobKeeper payments made by the Commonwealth to assist employers;
• in a weekly review meeting held on 26 August 2020, the appellant’s and Mr Pall’s relationship broke down and that, by the end of that day, each of them had called the police to intervene in whether or not the appellant should be removed from the firm’s office premises;
• on 28 August 2020, the contractual relationship between the parties was ended by an email sent from Kailash Lawyers to the appellant; and
• on 4 September 2020, the appellant commenced the proceeding in the Commission seeking an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth).

5. Division 3 of Pt 6-1 of the Fair Work Act is headed ‘Preventing multiple actions’ and included, in Subdiv B, s 725 which creates a general rule that a person who has been dismissed cannot make an application or complaint of a kind referred to in ss 726–732 in relation to the dismissal if any other of those sections applies. Relevantly, s 729 applied where an unfair dismissal application under s 394 had been made to the Commission by a person in relation to his or her dismissal, and that application had not been withdrawn, failed for want of jurisdiction or failed because the Commission was satisfied the dismissal was a case of genuine redundancy.
6. The Commissioner analysed the indicia and conduct manifested by the parties’ contractual arrangements and behaviours for the purposes of ascertaining whether or not, in truth, there was an employment relationship between the appellant and Kailash Lawyers. She had regard to some apparently anomalous evidence that demonstrated that both the appellant and Mr Pall had represented to the Law Society of New South Wales that the appellant was an employed solicitor in the law practice. It appeared necessary that he be employed as a solicitor, in order for him to have the practising certificate he held, because apparently the relevant legislative regime did not allow for a subcontracting relationship of the kind used in the agreement, unless there were some exception, to which we were not referred.
7. The Commissioner said that both the appellant and Mr Pall, as solicitors:

should have been expected to pay attention, or more particular attention, to what was represented by either or both of them to third parties in emailed correspondence or in the completion/signing of template documents – considering what they had specifically agreed between themselves in the [agreement] as to a non-employment relationship. The fact of representations made to third parties as to an employee/employer relationship constituted, I find, erroneous labelling by both the [appellant] and Mr Pall.

8. The Commissioner concluded that the appellant’s proceeding had to be dismissed for want of jurisdiction. As she found, it was a condition precedent for the Commission to have jurisdiction under s 394 that there be an employment relationship between the two parties. For more abundant caution, the Commissioner also considered whether Kailash Lawyers’ dismissal of the appellant had contravened the Small Business Fair Dismissal Code. She concluded that Kailash Lawyers had not contravened the Code. She upheld Kailash Lawyers’ jurisdictional objection, but also made an order, in the alternative, based on her last finding that, if the appellant were an employee, his dismissal had not been unfair.

THE PRIMARY JUDGE’S REASONS

9. The primary judge noted the tortured procedural history of the agitation of the various disputes between the parties. Those included the appellant seeking leave to appeal to the Full Bench of the Commission, the Commissioner subsequently ordering him to pay Kailash Lawyers’ costs and the Full Bench dismissing the application for leave to appeal on 24 November 2021. The Full Bench did so on the narrow bases that it was not satisfied that the public interest test in s 400(1) of the Fair Work Act had been satisfied in respect of the unfair dismissal claim and the appellant had not questioned the Commissioner’s alternative finding that, if he were an employee, his dismissal was consistent with the Code. The Full Bench found that, because no appeal had been brought against the alternative finding, it would not grant permission to appeal. The appellant made a subsequent application for leave to appeal to contest the Commissioner’s award of costs, which another Full Bench rejected.
10. His Honour noted that, on 23 December 2021, the respondents filed an interlocutory application seeking the dismissal of the appellant’s claims under s 31A of the Federal Court of Australia Act 1976 (Cth) or, alternatively, for orders under r 26.01 of the Federal Court Rules 2011 striking out his pleadings or staying those claims.
11. In the event, his Honour found that, in the statement of claim, the appellant had pleaded claims which were not the subject of any of the disputes in the Commission. Those were claims in contract against the second and third respondents as well as claims against Kailash Lawyers for psychological stress, to correct the date of termination in his supervision certificate from 28 July 2020 to 26 or 28 August 2020 and for having “badmouthed” the appellant to two legal practices (the non-employment claims). The primary judge found that those claims could be pursued in the proceeding in this Court, provided that the appellant properly formulated and pleaded causes of action in a new statement of claim that did not continue to include scandalous material.
12. The primary judge set out principles applicable to ascertaining whether a proceeding constitutes an abuse of the process of the Court. The appellant did not contend that his Honour had misstated or misapplied any of those principles.
13. His Honour set out the facts and noted that the statement of claim comprised 138 paragraphs asserting about 18 claims and what it alleged to be “common questions of fact and law”. The primary judge observed that the pleading’s structure created an impression that the substantive claims principally concerned the employment relationship between the appellant and Kailash Lawyers. His Honour found that this impression was confirmed upon closer reading, other than in respect of the non-employment claims.
14. Critically, his Honour found:
    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.
    43. The conclusion that the inclusion of these Parts in the Statement of Claim constitutes an abuse of process renders unnecessary any consideration of whether there is an issue estoppel (a matter which featured prominently in the submissions of the applicant and the first respondent). It is also unnecessary to consider the adequacy of the pleading in these Parts of the Statement of Claim, and whether the present proceeding was commenced for a collateral purpose (namely to force the first respondent to withdraw its costs application – see paragraphs [9] to [13] above).

(emphasis added)

15. The primary judge then explained why he, first, did not consider the non-employment claims to be an abuse of process, secondly, made the orders for the removal of the statement of claim from the Court file and, thirdly, had granted limited leave to replead. The primary judge also made an order for costs, which is the subject of a separate appeal heard by us concurrently by leave, based on his Honour’s finding that the pleading of the employment claims in the statement of claim was an abuse of process for which the appellant should be ordered to pay costs taxed on an indemnity basis and that that taxation should be able to proceed forthwith.

THE APPELLANT’S SUBMISSIONS

16. The appellant put on extensive written submissions and appeared for himself today. He asserted, at length, that the Commissioner’s decision was a significant miscarriage of justice and fundamentally wrong. He argued that the Commission had no jurisdiction or power to deal with his claims that the agreement was a sham or with his claims for employment-based relief, such as payments of annual leave, long service leave, superannuation, sick leave and the like. He also claimed that he had not been paid for some or all of August 2020. However, that was a matter which the Commission was not concerned with, and nor are we. He argued that, in effect, the Commissioner had failed to have regard to the evidence before her and that he should not be prevented from having what he asserted to be the true position determined in this Court. He referred to guidelines issued by the Australian Taxation Office (ATO) to support his argument that he was an employee and should have been found to be.
17. The appellant correctly said that the Commission could not determine on a final basis the rights of the parties or make a binding determination of right or law. He relied on what Ryan and Gyles JJ had said in Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 at 175–176 [81]–[82].

THE ATTEMPT TO COMMENCE A PROCEEDING IN THE HIGH COURT

18. The appellant applied to the High Court for orders to quash the Commission’s various decisions. Kiefel CJ concluded that the appellant should not be granted leave to issue or file his proposed application for a constitutional or other writ: see In the matter of an application by Prateek Patial for leave to issue or file  [2023] HCATrans 95.  The Chief Justice said:

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 [Kailash Lawyers] to which he was not party. He alleges that the first defendant was involved in illegal activities, committed perjury and tampered with evidence.
(emphasis added)

19. Her Honour found that there was no basis for those allegations or for a remitter of the proposed proceeding to this Court, that the appellant had not made any special leave application in respect of decisions of this Court, to which we have not been taken, and his claim for relief by way of mandamus was untenable. Her Honour found that the latter claim had been made after the appellant had brought the proceeding before the primary judge.

CONSIDERATION

20. Here, because the Commissioner had found that the appellant’s claim failed for want of jurisdiction as a consequence of her finding that there was no employment relationship, ss 725 and 729 of the Fair Work Act did not preclude him from commencing a proceeding in this Court.
21. This Court, as a superior court of record, has an inherent power to dismiss, deal with, limit or stay a proceeding as an abuse of process. In Walton v Gardiner (1993) 177 CLR 378 at 392–‍393, Mason CJ, Deane and Dawson JJ said:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
(emphasis added)

22. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, Gleeson CJ, Gummow, Hayne and Crennan JJ examined the principles underlying the Court’s power to deal with proceedings as an abuse of its process. They adopted (at 264 [6]) the following passage from Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536C–D, which the Court had earlier applied in Walton 177 CLR at 393, where his Lordship said there exists:

the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people.
(emphasis added)

23. Gleeson CJ, Gummow, Hayne and Crennan JJ continued (at 265 [9]):

What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.

24. Similarly, in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at 93–‍94 [28], French CJ, Gummow, Hayne and Crennan JJ, said that the term “abuse of process”, as used in Australia today, is not limited by fixed categories or those that constitute the tort of abuse of process and reiterated that the categories were not closed. However, they emphasised that this did not entail that the expression “abuse of process” was a term at large or without meaning or that it could be applied to a category of case merely because one party to it might assert the proceeding was, in some sense, unfair to that party. They said:

It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” (Batistatos (2006) 226 CLR at 267 [14] (footnotes omitted)).
(emphasis added)

25. In Miller 132 FCR at 175 [81], Ryan and Gyles JJ held:

there is considerable difficulty in finding a proper basis for the concept of staying proceedings as an abuse of process upon the ground of relitigation in the case of proceedings between the same parties which goes beyond the effect of res judicata, issue estoppel and Anshun estoppel ... In our view, near enough to an estoppel is not good enough to establish abuse of process between the same parties without some other element being present.
(emphasis added)

26. In Symes v Holbrook [2005] FCAFC 219 at [49], Lee, Moore and Nicholson JJ said that, in Miller 132 FCR at 175 [81], Ryan and Gyles JJ contemplated that the question whether there is “some other element ... present” would require separate identification of what was said to be an abuse of process, notwithstanding that the doctrines of res judicata, issue estoppel or Anshun estoppel did not apply to the relitigation being conducted between the parties.
27. In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-243, Giles J, CJ in Comm D, stated a number of principles in relation to abuse of process that have been seen as instructive in the evaluation of the balancing exercise that a court necessarily undertakes when asked to conclude that a remedy for an abuse of process, such as a stay or striking out, is appropriate. He said:

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are—

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

(emphasis added)

28. Importantly, a superior court’s power to prevent abuses of both its own process and processes of inferior courts and tribunals includes the ability to determine whether, by reason of earlier findings in proceedings in administrative tribunals, other courts or dispute resolution processes, the pursuit of a particular aspect, or the whole, of litigation in the superior (or later) court amounts to an abuse of its process: Walton 177 CLR at 396.
29. Here, the appellant filed a considerable amount of material and submissions which did not engage in any substantive way in identifying an arguable claim that the primary judge erred in his finding that, in all of the circumstances, the pursuit of his claim based on there being an employment relationship was an abuse of process.
30. The proceeding before the Commissioner involved an extensive exploration of the whole of the relationship between the appellant and Kailash Lawyers so far as it underpinned his claim to be entitled to a remedy for unfair dismissal under s 394 of the Fair Work Act. Necessarily, that claim required the Commission to determine whether or not the true characterisation of the relationship between the appellant and Kailash Lawyers was that of employee and employer. Both parties contested that issue, deploying all of the resources available to them to enable the Commission to determine whether it could provide a remedy in the exercise of its statutory powers to do so. The Commissioner’s alternate finding, that, if the appellant were an employee, he would not have been entitled to a remedy for unfair dismissal, did not conclude anything about any entitlement he may have to payment of any outstanding moneys that he had earned or other benefits he was entitled to as an employee or under the agreement (see too s 733 of the Fair Work Act). The Commission ordered that the appellant pay Kailash Lawyers’ costs of the proceeding before it, generated by the four-day hearing and procedural steps.
31. The essence of the appellant’s claim, as framed before the primary judge in the parts of the statement of claim that his Honour did not allow to be litigated in this Court because to do so would be an abuse, depended upon the essential fact of whether or not the appellant could prove an employment relationship existed.
32. In our opinion, to allow the appellant, in substance, to relitigate the same issue that the Commissioner decided, as to whether or not he was an employee so as to found his claims for unfair dismissal, would expose Kailash Lawyers to unreasonable vexation and expense. While, as we have said, ss 725 and 729 do not create a bar to the appellant bringing a claim in this Court for unfair dismissal based on his being an employee of Kailash Lawyers, he has repeatedly made scandalous allegations in doing so, without any coherent or proper basis. He repeatedly argued before us that the agreement was a sham such that the Commission could not decide this issue. He asserted that, in some way, the ATO had accepted his claim to have been an employee of Kailash Lawyers even though no PAYG tax had been paid in respect of him and his “employer” had not provided him with a group certificate. He contended that he was an employee under the ATO guidelines which he cited as determining that “trainees [are] always considered employees for taxation purposes”. He argued:

there are two clauses. The one clause is I will get 40 per cent. And another, if I can make a billings above $100,000, I can get 10 per cent commission. 10 per cent extra. However, Mr Pall didn’t pay me my remuneration or the commission for the month of August 2020 at that time after ... He didn’t pay me for the 10 per cent. Even he breached his own argument [scil: agreement].
...
I was under supervised legal training. Mr Pall was a principal. Mr Pall had more responsibility, more duty of care ... towards the legal practitioner. And Mr Pall was doing this sham agreement with the other lawyers for the last 13 years. And he – if you are not going to stop him, he will victimise more future lawyers.
(emphasis added)

33. A sham is an expression that refers to “steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences”: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 at 486 [46] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
34. Notably, the appellant did not dispute that Kailash Lawyers paid him “commission” (until the breakdown in their relationship in August 2020) in accordance with the terms of the agreement. He also ran his own migration agency and investment businesses concurrently with his performing work for Kailash Lawyers. The appellant did not articulate how, when he and Kailash Lawyers conducted their relationship in accordance with the agreement, it could have been a sham to cloak or mask the true position.
35. For over 15 months, the parties conducted their relationship, as the Commissioner found, and as the appellant accepted before us, as the agreement provided. That is, the parties acted on the actual and intentional basis that the appellant invoiced Kailash Lawyers for a percentage of the fees which it charged clients in respect of the work he generated, being 40%, or where, as he said had occurred, more than $100,000 per annum was earned, 50%. He told us that, consistently with the terms of cl 2(a)(vii) of the agreement, he received those payments as commission, not wages, from Kailash Lawyers and that Mr Pall supervised him, again, as the agreement required. There was no element of charade or sham in any of this conduct. That conduct was performance of the agreement, not a use of it to mask some other relationship. And the appellant had his own separate business, including one in which, in 2020, he received JobKeeper payments while, as he now asserts, a full-time employee of Kailash Lawyers.
36. In Miller 132 FCR at 175–176 [82], Ryan and Gyles JJ found that Dr Miller was not attempting to litigate again a matter that had been decided against him in the relevant sense. That was because, there, the University had employed Dr Miller as an academic for over 20 years before it began disciplinary proceedings against him that culminated in his dismissal. He claimed in the Australian Industrial Relations Commission that the dismissal was harsh, unjust or unreasonable and sought relief from it by arbitration. The Full Court found that the arbitration could not create any issue estoppel. Ryan and Gyles JJ (at 175–176 [82]) noted that the Court could not give the same relief as the Commission and the criteria for relief in each forum were not the same, although there was some overlap, but the Commission had no jurisdiction to grant some of the relief sought in the Court proceeding. Thus, in Miller [2003] FCAFC 180; 132 FCR 147, the remedies which Dr Miller sought and the jurisdiction to grant relief in respect of the termination of his employment in the Commission were different, indeed, as Ryan and Gyles JJ said (at 176 [83]), alternative, to those he sought in the Court.
37. Here, in contrast to Miller [2003] FCAFC 180; 132 FCR 147, the central and determinative issue before the Commissioner was whether the appellant was an employee or not. The Commission’s finding that he was not employed by, but was, instead, a contractor for, Kailash Lawyers meant that it had no jurisdiction to grant any relief to the appellant under s 394. As the primary judge found at [41] of his reasons, the employment based claims that the appellant pleaded in the statement of claim were abusive of the Court’s process because they were all dependent on him being an employee.
38. The appellant failed to identify any part of the primary judge’s reasoning that exposed an error other than his assertion that his Honour erred in finding that he should not be allowed to litigate the issue of employment again. The primary judge correctly directed himself to the law in [41]–[43] of his reasons and came to a conclusion that was open to him and with which we agree, in all of the circumstances of this particular case, including the uncontentious matters to which we have just referred. There is no error in his Honour’s reasons for concluding that the appellant should not be allowed to reagitate in the Court the same subject matter, namely, whether he had an employment relationship with Kailash Lawyers, that he extensively agitated for the purposes of seeking an unfair dismissal remedy under s 394 in a lengthy hearing before the Commission and from which the Full Bench refused him leave to appeal.
39. For those reasons, the appeal must fail.

THE COSTS APPEAL

40. The primary judge’s conclusion that the appellant should pay indemnity costs in respect of that matter was the subject of the second appeal. His Honour found that the appellant, as a legal practitioner, “should have been aware, from the commencement of the proceeding on 29 September 2021 that he was engaging in an abuse of process”. The appellant persisted, despite the position being clearly spelt out for him by the solicitor for the respondents in correspondence to which his Honour referred in his second reasons for awarding costs.
41. It was open to the primary judge to make the indemnity costs order in the exercise of his discretion. The appellant did not identify any error to enliven this Court’s power to set aside that discretionary order: House v The King (1936) 55 CLR 499 at 504–505 per Dixon, Evatt and McTiernan JJ.
42. The costs appeal must fail.

DISPOSITION

43. The respondents seek an order for party-party costs of the appeals. The failure of the appellant, as a legal practitioner, to engage with the identification of error by the primary judge and the application of any coherent legal principles to support either appeal, together with the preparation of two bundles of authorities, one by each side, of well over 1000 pages in total, was unreasonable as was the pursuit of the appeals in all of the circumstances. In those circumstances, the appellant should be ordered to pay the respondents’ costs of the appeals on the ordinary party-party basis.
44. We will order that both appeals be dismissed with costs.

Associate:

Dated: 11 September 2023