Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] FCA 899
• Date: 29 July 2022
• Court: Federal Court

Federal Court of Australia

Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899

File number(s):	NSD 1016 of 2021
Judgment of:	GOODMAN J
Date of judgment:	29 July 2022
Date of publication of reasons:	3 August 2022
Catchwords:	COSTS – application for costs to be payable in a proceeding in which s 570 of the Fair Work Act 2009 (Cth) applies – application for such costs to be payable on an indemnity basis and to be assessable and payable forthwith – application granted
Legislation:	Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases cited:	Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662 Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167 Prateek Patial v Kailash Lawyers Pty Ltd T/as Kailash Lawyers and Consultants [2021] FWCFB 6055 Richmond v Ora Gold Limited [2020] FCA 70 Watson v Kriticos (Costs Payable Forthwith) [2022] FCA 4
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	47
Date of last submission/s:	20 July 2022
Date of hearing:	Determined on the papers
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr V Misra
Solicitor for the Respondents:	Kailash Lawyers and Consultants

ORDERS

		NSD 1016 of 2021
BETWEEN:	PRATEEK PATIAL Applicant
AND:	KAILASH LAWYERS PTY LTD ACN 604 582 550 TRADING AS KAILASH LAWYERS AND CONSULTANTS First Respondent ; KOALA INVESTMENT PROPERTY PTY LTD ACN 603 793 308 TRADING AS KOALA INVEST Second Respondent ; KUBER INVESTMENT GROUP PTY LTD ACN 602 779 199 TRADING AS KUBER PROJECTS Third Respondent

order made by:	GOODMAN J
DATE OF ORDER:	29 July 2022

THE COURT ORDERS THAT:

1. The applicant is to pay the respondents’ costs of and incidental to the respondents’ interlocutory application dated 23 December 2021.

2. Such costs are to be paid on an indemnity basis and forthwith, as agreed or assessed.

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

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1. On 9 June 2022, I made an order striking out the Statement of Claim filed by the applicant in this proceeding, together with orders allowing the applicant an opportunity to seek leave to propound a further Statement of Claim limited to discrete topics: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662 (Patial (No 1)). I also made orders allowing the respondents to apply for an order for costs.

2. The respondents seek an order requiring the applicant to pay their costs and to do so on an indemnity basis and forthwith.

BACKGROUND

3. On 4 September 2020, the applicant filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Commission. The first respondent was the only respondent to that application.

4. On 9 and 30 March, 20 April and 20 May 2021, Commissioner McKenna of the Commission heard the application and, on 6 August 2021, she dismissed it: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167.

5. On 22 August 2021, the applicant wrote to the first respondent’s then legal representative demanding that the first respondent withdraw its costs application and pay his “outstanding wages”, failing which the applicant would commence a proceeding in this Court. That correspondence also threatened to bring proceedings against the first respondent’s then solicitor and his firm.

6. On 26 August 2021, the applicant wrote directly to the first respondent offering to withdraw his appeal and to not commence a proceeding in this Court if the first respondent withdrew its application for costs in the Commission.

7. On 27 August 2021, the applicant sought leave to appeal the Commissioner’s decision.

8. On 29 September 2021, the applicant commenced this proceeding by filing an Originating Application and Statement of Claim.

9. On 8 October 2021, a Full Bench of the Commission heard the applicant’s application for leave to appeal.

10. On 8 November 2021, the then solicitor for the respondents wrote to the applicant in the following terms:

9. We have reviewed the Statement of Claim and find it [to] be a clear and substantial abuse of the process of the Court.

10. Firstly, as part of your Statement of Claim, you are alleging you were an employee of the First Respondent. However, this same issue has already been determined by Commissioner McKenna who found that you were not in fact an employee of the First Respondent. Consequently, you are attempting to re-litigate the same issues which have previously been raised and addressed in the Unfair Dismissal Application and which currently remain the subject of an appeal before the Commission. The bringing of concurrent proceedings in different courts relating to the same subject-matter is an abuse of the process of the Court (Moore v Inglis (1976) 50 ALJR 589 and Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192). Further, proceedings instituted in a second forum where there is a pending proceeding in another forum would be an abuse of the process of the first forum (Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [90]).

11. Secondly, the Statement of Claim filed by you in these proceedings is for a collateral purpose. On 22 August 2021 you sent us a letter, threatening to commence legal proceedings should we not withdraw the Cost Application. The commencing of proceedings for an improper purpose including to induce a favourable settlement of other proceedings is a clear abuse of process and would form the basis of a strike out application (Williams v Spautz (1992) 174 CLR 509 and Packer v Meagher (1984) 3 NSWLR 486).

…

Demand to discontinue Federal Court Proceedings

13. We confirm this matter was listed for a first case management hearing at 9am on 12 November 2021 before Justice Bromwich. This case management hearing has now been cancelled as the matter is due to be re allocated to a new judge at which point the matter will be re-listed for another case management hearing. If you wish to avoid the costs consequences associated with this matter proceeding any further, we demand that you discontinue the abovementioned proceedings within the next 24 hours and no later than 12.00pm Tuesday 9 November 2021.

14. If you do not discontinue the Federal Court Proceedings, we will be seeking to make an...