Amanda Jayne Hill v Melbourne International Shooting Club Inc T/A Melbourne International Shooting Club Inc
[2023] FWC 125
•17 JANUARY 2023
| [2023] FWC 125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.401 - Application for costs orders against lawyers and paid agents
Amanda Jayne Hill
v
Melbourne International Shooting Club Inc T/A Melbourne International Shooting Club Inc
(U2022/6530)
| COMMISSIONER YILMAZ | MELBOURNE, 17 JANUARY 2023 |
Application by Applicant for costs – order under section 400A of the Fair Work Act 2009 against the Respondent – jurisdictional objection without reasonable cause or vexatiously not made – no costs order against Respondent
This decision concerns an application for costs made by Ms Amanda Jayne Hill (the Applicant) on 23 June 2022 in relation to her unfair dismissal application against Melbourne International Shooting Club (the Respondent) in matter U2021/8806. The Applicant seeks orders for the payment of $63,460.00 plus GST of $6346.00 and the filing fee of $74.90 which represents all of her costs incurred. The decision in matter U2021/8806 was handed down on 9 June 2022. The Melbourne International Shooting Club argued that the Applicant’s dismissal was a genuine redundancy. The Applicant contested her dismissal arguing it was not a genuine redundancy.
The Applicant filed a claim for costs, Form F6 together with an itemised claim and a copy of correspondence from the Applicant’s representative to the Respondent’s solicitor dated 22 September 2021. I issued Directions for the filing of submissions in relation to the application for costs. The hearing date on 29 July 2022 was subsequently vacated as the parties agreed that the matter be determined on the papers.
The Applicant commenced employment with the Melbourne International Shooting Club Inc on a part-time basis at the weekly rate of $660 per week gross. Her employment commenced on 31 August 2012 as the Club Manager, and she was dismissed for the reason of redundancy on 21 September 2021. At the time of the Applicant’s dismissal, she was on WorkCover and paid the relevant statutory rate of pre-injury weekly earnings.
It was not contested that the Applicant was absent due to a WorkCover claim which was accepted effective from December 2020 and the Respondent dismissed her employment alleging that her job was largely automated and some of her duties absorbed by members of the Board.
The Applicant is seeking orders to recover $63,460 plus GST incurred in legal fees with AWE Legal in her unfair dismissal application, plus the filing fee of $74.90. The Applicant provided a schedule of costs containing items from 17 September 2021 to 10 June 2022. This application was made 14 days after the decision was published.
The following is a summary of the grounds on which costs are sought by the Applicant pursuant to s.400A of the Fair Work Act.2009 (the Act):
The Respondent proceeded with the termination of employment despite the letter of 22 September 2022 from the Applicant’s representative detailing why the impending redundancy was not valid. It is alleged the Respondent displayed a wilful disregard for the law, particularly in view of the eight-day opportunity provided by the Applicant to the Respondent to reverse its decision.
The alleged disregard for the law, is demonstrated in the Respondent’s correspondence in response of 20 October 2021 in paragraphs 4-6 which was filed in the matter and the jurisdictional objection to the application dated 1 October 2021 claiming protection and benefit of the Small Business Fair Dismissal Code exemption in s.388 of the Act. The Respondent repeated the same argument in its outline of submissions dated 2 December 2021 at pages 4 and 5.
Despite the Applicant’s submissions dated 23 December 2021 setting out why the Small Business Fair Dismissal Code exemption was misconceived, no effort was made by the Respondent to reconsider its position until the lunch adjournment on the first day of hearing on 7 February 2022 when reliance on the Code was relinquished.
The Respondent showed disregard for its obligation to narrow the issues in dispute and to avoid the generation of legal costs in relation to futile matters. In support the Applicant refers to paragraphs 32 to 38 of the decision of 9 June 2022.
The Respondent confirmed its decision to make the Applicant redundant despite being on notice since 22 September 2021, which resulted in significant costs to the Applicant to enforce her legal rights.
As the Respondent was represented at all times by McDonald Murholme and legal counsel during the two conciliation conferences and at hearing, the course adopted by the Respondent needlessly put the Applicant in a position of having incurred significant costs.
Legal representation is not necessary and where a party seeks representation they seek leave from the Commission. In this matter both parties sought to be legally represented at the hearing and leave was granted. The Applicant was represented by Justin Griffin of AWE Legal and the Respondent by Alan McDonald of McDonald Murholme including legal counsel.
Both parties agreed that the matter of costs be considered on the papers and the hearing date was vacated.
The submissions
The Applicant
The Applicant accepts that in terms of the question of costs, ordinarily costs orders are not made and matters where one party is successful and the other is not, ordinarily do not form the basis to make a costs order.
However, the Applicant contends that both sections 400A and 611(2) of the Act require examination of “reasonableness of the course embarked upon in this litigation by the Respondent.”[1] In reference to the authorities, the Applicant submits that the test of reasonableness involves an objective test and not the subjective views of the party in question.[2]
The Applicant further relied on the principles in Church v Eastern Health[3] and describes them as the following and adds that the equivalent expressions apply to a Respondent:
The power to order costs pursuant to s.611(2) of the Act should be exercised with caution and only in a clear case
A party cannot be said to make an application ‘without reasonable cause’ within the meaning of s.611(2)(a) simply because their argument proves unsuccessful
One way of testing whether the proceeding was instituted “without reasonable cause’ is to ask on the facts known to the applicant at the time of instituting the proceeding that there was no prospect of success.
The test by the expression “without reasonable cause’ is similar to that in a summary judgement, i.e. “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, or “discloses a case that the Court is satisfied cannot succeed”.
The Applicant submits that the Respondent engaged competent legal representatives before proceedings commenced in the Commission, then makes the assumption that accurate legal advice was given to the Respondent in respect to the Small Business Fair Dismissal Code (the Code) and s.103 of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013 (WIRC Act).
The Applicant relies on findings in the decision that the Code had no relevance, and that the termination of the employment was in breach of s.103 of the WIRC Act. On the assumption that legal advice was received by the Respondent, the Applicant asserts that the case was run against ‘impossible legal obstacles’ and therefore its conduct was “unreasonable” within the meaning of s.400A and s.611. By similar reasoning the Applicant contends that the Respondent’s position was “obviously untenable”, “manifestly groundless” and “discloses a case that cannot succeed”. [4]
The Applicant submits that this matter can be contrasted with cases where a dispute is limited to factual matters or legal argument where a legislative provision is subject to differing interpretations. The Applicant further contends that such matters would not enliven s.400A and s.611 of the Act, but it is not the case in this application. It is further submitted that its letter of 22 September 2021 is significant because it warned the Respondent that the alleged “genuine redundancy” was factually and legally incorrect.[5]
The Applicant further contends that the parties had a legal obligation to avoid the incurring of unnecessary legal costs and to properly limit the issues in dispute. This contention relies on the Civil Procedure Act 2010 (Vic), and while not expressed to apply in proceedings before this Commission, the Applicant contends that the wording of s.400A and s.611 infers comparable behaviour from the parties.[6]
In anticipation that the Respondent may refer to the two offers to settle which the Applicant rejected, the Applicant contends that it was her right to seek reinstatement as the primary remedy and the reason I did not award reinstatement was because the Applicant remained on WorkCover. It further contends that the WorkCover claim arose from the behaviour of the Respondent and for the Applicant to be denied the right to seek reinstatement because of her absence on WorkCover would remove the remedy intended by Parliament.[7]
In relation to anticipated submissions by the Respondent that a costs order would threaten its financial viability, it contends that the annual income from membership fees and its assets suggest the Respondent would have no issue with borrowing funds. The Applicant further suggests that the Respondent incurred costs associated with representation by Employsure and McDonald Murholme as legal counsel and this does not indicate that the Club would be financially challenged.[8]
The Respondent
The Respondent submits the application for costs should be dismissed as it is the general rule that parties bear their own costs except in exceptional circumstances where the Respondent has acted vexatiously, or without reasonable cause, or where it was reasonably apparent to the Respondent that there was no reasonable prospect of success. It further submits that there are no exceptional circumstances relevant that allow the Commission to order the payment of costs. Additionally, pursuant to s.400A of the Act, the Respondent has not engaged in any unreasonable act or omission in connection with the conduct or continuation of the initial proceedings.[9]
In particular reference to the provisions of the Act, the Respondent submits that s.611 provides the general provisions relating to costs.[10] The submission further refers to and relies on the definition of costs in the Fair Work Commission’s Unfair Dismissal Benchbook. It relies primarily on the decisions of McKenzie v Meran Rise[11] which described the two-step process and Church v Eastern Health[12] in relation to the first limb of s.611(2) of the Act and reference to the terms vexatious and without reasonable cause. It submits the second limb of s.611(2) of the Act concerns the terms should have been reasonably apparent and had no reasonable prospects of success and relies on Baker v Salva Resources Pty Ltd.[13]
In responding to the costs application, the Respondent relies on Nilsen v Loyal Orange Trust[14] with respect to the term vexatious, and General Steel Industries Inc v Commissioner for Railways[15] in terms of reasonable cause. It submits that the Commission must be satisfied against an objectively high threshold that the Respondent’s jurisdictional objection was without reasonable cause,[16] and not merely because it failed.
In reference to s.400A of the Act, the Respondent refers to Asiye Oz v Amity College Australia Limited[17] as relevant to the circumstances of this matter.
The respondent then addressed each of the following considerations in the context of the facts of the case:
Whether the Respondent responded to the application vexatiously or without reasonable cause within the meaning of s.611(2)(a) of the Act.
Whether it was reasonably apparent to the Respondent that its response to the application had no reasonable prospect of success within the meaning of s.611(2)(b) of the Act.
Had the Respondent caused the costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter within the meaning of s.400A of the Act.
The legislation
The Applicant makes the application pursuant to s.400A of the Act which provides:
‘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.’
Section 402 provides that an application for an order for costs must be made within 14 days after the Commission determines the matter. The Applicant’s application was made within the time frame stipulated by s.402.
Section 611 has general application in relation to costs matters before the Commission. Section 611 provides as follows:
‘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).’
Consideration
General principles
Section 400A was inserted into the Act by the Fair Work Amendment Act 2012. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 states:
‘168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.
169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
170. The FWC’s power to award costs under this provision is discretionary and is only
exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.’[18]
Where a party chooses to incur legal expenses, they bear their own costs in a matter before the Commission.[19] Section 400A sets out additional circumstances where a party may make an application for costs orders where the other party caused the party to incur costs because of unreasonable conduct or an unreasonable manner that the party defends or pursues an unfair dismissal claim.
The Explanatory Memorandum makes clear that s.400A of the Act is not intended to prevent an applicant from “robustly” pursuing their position, rather it is intended to address the conduct of those that unreasonably pursue a position and there is clear evidence of unreasonable conduct.
The general provision when the Commission can award costs is in s.611 of the Act.
Awarding costs is discretionary in an unfair dismissal case where the Commission is satisfied that the costs were incurred as a result of the other party making the application or responding vexatiously or without reasonable cause. In this matter, the Applicant must satisfy the Commission that the Respondent’s response was vexatious or without reasonable cause or that the matter had no reasonable prospect of success.[20] Further, costs may be awarded should the evidence show that the Applicant incurred costs because the Respondent acted unreasonably.
Matters concerning reliance on the Small Business fair Dismissal Code
Turning to the primary decision, the Respondent contended that the unfair dismissal application should be dismissed due to the dismissal being a genuine redundancy and the dismissal being consistent with the Small Business Fair Dismissal Code (the Code). It further contended that the Code assists with determining whether the redundancy is a genuine redundancy. The Code was tendered in evidence and the Respondent indicated that the job was not being performed by anyone because of operational requirements and that it complied with the consultation requirements in the modern award. Evidence was led regarding the change to the position since the Applicant’s absence on WorkCover. The Applicant challenged both the dismissal and the Respondent’s unwavering position in the course of proceedings that the dismissal was a genuine redundancy and that it followed the Code.
After the luncheon break of the first day of hearing the Respondent did indicate it was no longer relying on the jurisdictional objection in relation to the Code. Nevertheless, I did consider the relevance of the Code to the matter. The completed Code tendered in evidence included information on redundancy and directs the small business to the requirements contained in s.389 of the Act. I then considered the relevance of s.389 of the Act to the facts of the matter.
In this costs application, the Applicant relies on my findings in the decision, one being that the Code did not apply to the dismissal[21] and contends that the Respondent conducted its case in the “knowledge” it faced the “impossible legal obstacles” with respect to s.388 of the Act and s.103 of the WIRC Act.[22] By extension she contends that this was unreasonable in the context of both s.400A and s.611.
Section.388 of the Act concerns the Code which offers guidance to small business employers for compliance and defence against the unfair dismissal protections under the Act. The Code refers to redundancy which I identified in my primary decision. The Code importantly informs the small business of the application of s.389 of the Act when contemplating a dismissal for reasons of redundancy, noting the Act defines “genuine redundancy” in s.389(1) and requires consideration of s.389(2) in respect to redeployment. Where a dismissal for the reason of redundancy fulfils the obligations identified in s.389, the dismissal falls outside of the unfair dismissal jurisdiction as provided for in s.385 of the Act. Other dismissals, including where there is a reason of redundancy, fall within the unfair dismissal protections.
Throughout the proceedings the Respondent maintained that the reason for dismissal was redundancy, and its jurisdictional objection concerned the definition of genuine redundancy in the Act. The fact that the Respondent determined to no longer rely on the Code did not materially affect their submissions in defence of their jurisdictional objection; to succeed on the jurisdictional objection, reliance on s.389 is commonplace and necessary. The Code by extension is of limited consequence in a jurisdictional argument.
I do not agree with the Applicant’s contention that the Respondent’s initial reliance on the Code in the jurisdictional objection is indicative of a case against “impossible legal obstacles” and construed as unreasonable acts or omissions in connection with the conduct or continuation of the matter in relation to s.400A, nor, subject to s.611 that its response to the application was without reasonable cause, or that I can find that it was reasonably apparent to the Respondent that its response had no reasonable prospect of success.
I do not consider the Applicant’s argument that the Respondent’s withdrawal of its focus on the Code during the hearing justifies costs on the basis that the Respondent’s conduct can be construed as unreasonable. In respect to the Code, the Applicant contends that the Respondent’s strong reliance on the Code was unreasonable for the following reasons:
1. Reliance on the Code was a disregard for the law, that this was obvious and the Respondent was on notice that this was the case
2. Reliance on the Code right up to the hearing luncheon adjournment was unreasonable in light of the Applicant’s view that the Respondent maintained a misconceived view of the law
3. That the position was contrary to the position that legal representatives had an obligation to narrow the issues in dispute that effect legal costs
4. As a consequence, the Applicant incurred legal costs due to the unreasonable approach
As I enunciate in the above paragraphs, the Respondent is a small business, it tendered in evidence a copy of the completed Code, it argued that the dismissal was a redundancy and for the purposes of the jurisdictional objection a “genuine redundancy” as proscribed by s.389 of the Act. The relevance of the Code in the jurisdictional argument has in my view limited consequence. While the Respondent addressed the Code in their outline of submissions, its decision not to focus on the Code during the hearing in my view did not disadvantage or inconvenience the parties or the Commission. Further, I am not satisfied that its decision subsequently unreasonably caused costs to justify an order as the matter of “genuine redundancy” remained the focus of proceedings. To be clear, to succeed in a genuine redundancy jurisdictional objection, the Respondent must satisfy s.389 of the Act. The Code is clearly not the principal test of genuine redundancy.
In my decision I did not find that the Respondent satisfied the requirements of s.389(1)(a) and therefore found it unnecessary to consider s.389(1)(b). It follows that s.389(2) was not considered, and despite the reason for dismissal was redundancy I was compelled to consider the criteria for considering harshness etc under s.387 of the Act.
In addition to my views concerning the application of the Code during proceedings, the grounds for a costs order by the Applicant also references conduct or omissions of the Respondent prior to the dismissal. Both s.400A and s.611 concern matters before the Commission, consequently I do not consider it appropriate nor helpful in this matter to assess any conduct prior to the application before the Commission which the Applicant states constituted unreasonableness.
The reasons for the dismissal and the consequent proceedings
The grounds for the costs application largely concerns the Applicant’s contention the reason for dismissal was contrived and not a redundancy at all, let alone a genuine redundancy for the purposes of the Act. This application relies on its letter to the Respondent on 22 September 2021, where it offered the Respondent eight days to withdraw its decision to terminate the Applicant’s employment, but the Respondent went ahead to execute the dismissal anyway. It is submitted that this unreasonably and needlessly caused the Applicant to incur legal costs to enforce her rights against a futile matter. The list of grounds suggest that had legal representation for the Respondent narrowed the matters in dispute, the application may not have been robustly challenged culminating in a decision which found in favour of the Applicant. Further the grounds could be interpreted to suggest that the Applicant required legal representation resulting in unnecessary and unreasonable costs because the Respondent was legally represented and vigorously defended its decision to dismiss the Applicant.
Again, I reiterate that any conduct preceding the matter before the Commission is not intended to be captured by an order for costs either in s.400A or s.611 of the Act.
Having reviewed the evidence, the conduct of the parties during proceedings, the jurisdictional objection and ultimately my findings in the primary decision I cannot find in favour of a costs order against the Respondent for the following reasons:
The Respondent did not succeed in their jurisdictional objection that the dismissal was a genuine redundancy as defined by s.389 of the Act. This is an important step to ascertain whether the unfair dismissal application meets the protections afforded by the Act in s.385. Where the dismissal is captured by the protections, the unfair dismissal provisions are enlivened.
Evidence concerning the Respondent’s reasons for dismissal and the procedure were subsequently considered in the context of s.387 and I found the dismissal unfair. This process involved contested factual matters and did involve substantial documentary and witness evidence. The Respondent in defending their position addressed the jurisdictional argument and all matters as required in s.387 including that the Applicant was not dismissed unfairly within the meaning of s.385 and remedy, particularly why an order for reinstatement was not appropriate. I am not satisfied that the outcome of the matter was obvious to either party that the position ought to be considered obviously untenable or manifestly groundless, vexatious or any of the descriptors used by the Applicant and required by the Act prior to the application or at its early stages to warrant an order for costs.
In relation to the outcome of the primary matter, not only did I consider the reason and process, I considered the appropriate remedy. The Applicant was absent from work firstly on sick leave followed by WorkCover from December 2020, with no clear indication when and if she would return to work in any capacity. Her medical condition was such that reinstatement was not a practical or appropriate remedy even though it was the principal remedy sought.
Despite the impracticality of reinstatement, I understand the Applicant did not reach a settlement with the Respondent because of her insistence on the primary remedy of reinstatement.
The Applicant acknowledges that two offers to settle were made by the Respondent and that no counteroffer was made, because she contends that her sole remedy of reinstatement was her right to pursue. My decision did not vindicate the Applicant’s pursuit of reinstatement. Rather, reinstatement in my view was impracticable because of the ongoing status of her WorkCover claim and with her receipt of weekly payments, she was not entitled to payment of wages in lieu of reinstatement.
It appears that the Applicant pursued reinstatement at the risk of all costs, including her own mounting legal costs. For reasons unknown, it appears the Applicant may not have conducted any cost benefit analysis. To illustrate, the Applicant is claiming $69,880.90 inclusive of GST and the filing fee. Even if there was no limitation to award compensation in lieu of reinstatement, the total costs claimed exceed two years of the Applicant’s wages. This in my view is an excessive risk that ought to have been considered when the parties participated in two conciliation conferences, one with a member of the Commission.
In view of my comments above, no costs order can reasonably be made to cover such high costs in a jurisdiction that is intended for parties to bear their own costs. I also consider that the Applicant must bear responsibility for the costs that she incurred.
Further in relation to the remedy awarded, the Applicant contends that the offer to settle was less than awarded and the second offer was quite close to the hearing date. There are three points to be made, firstly, it was open to the Applicant to make a counteroffer at any time, and she chose not to. Secondly, I reiterate that the Applicant’s expectations for reinstatement was made at her own risk taking into account the jurisdiction of remedy and the principle that parties bear their own costs, and thirdly, much emphasis was made on the characterisation of the compensation which included a sum to cover her entitlements. Arguably, had I not made reference to the Applicant’s entitlements, she could have sought recovery of them elsewhere without the need to contest her dismissal.
The Commission may make a costs order if it is satisfied that the Respondent caused the costs to be incurred by the Applicant because of its unreasonable act or omission in pursuing the jurisdictional objection.[23] I am not satisfied that the Applicant incurred the legal costs because of unreasonable acts by the Respondent in challenging the application on the basis of genuine redundancy.
Relevant to this consideration is whether the proceedings were brought without reasonable cause is whether the proceeding had reasonable prospect of success at the time they were instituted and not whether the proceedings failed.[24] Again, as earlier stated, I am not satisfied that the outcome of proceedings were obvious to either party.
Nevertheless, I am mindful that a “conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.” [25] I am not satisfied to make an order for costs, caution is called for in this matter.
As I observed in my decision, the facts were strongly contested, and my decision depended on determining those disputed facts. I do not agree that it was reasonably apparent that the application had no prospect of success.
In response to the Applicant’s assertion that the Respondent’s actions were vexatious, I have considered its meaning in the context of this matter. The meaning of vexatious was considered by Justice North in Nilsen v Loyal Orange Trust [26] as follows:
“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: see Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.”
Given the meaning, the Applicant’s argument that the application was vexatious must go to motive to embarrass, harass the Applicant, or to gain collateral advantage. However, no clear evidence was advanced to support this contention.
It cannot be objectively inferred from the facts that the outcome was obvious to contend that there was an ulterior or improper motive. It is not sufficient to find that the jurisdictional objection is vexatious within the meaning of s.611(2)(a).
Conclusion
I am not satisfied that the Applicant has substantiated that the Respondent raised the jurisdictional objection unreasonably, vexatiously or that its case was without reasonable cause. Having considered the submissions of the parties and the evidence, the Applicant has not satisfied the Commission to use its discretion in respect to the provisions of s.400A or s.611 of the Act to make an order against the Respondent. The application is dismissed.
COMMISSIONER
Determined on the papers
Written submissions:
Costs applicant: 20 July 2022
Costs respondents: 27 July 2022
[1] Applicant’s outline of submissions - costs para 11.
[2] Ibid para 12 and A Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 and NSW Trains v Ayub[2017] FWCFB 4801.
[3] Church v Eastern Health[2014] FWCFB 810.
[4] Applicant’s outline of submissions – costs, paras 16 – 19.
[5] Ibid paras 20 – 21.
[6] Ibid paras 23- 24.
[7] Ibid subparas 26.1-26.2.
[8] Ibid para 27.
[9] Respondent’s outline of submissions - costs para 4.
[10] Ibid para 6.
[11] McKenzie v Meran Rise Pty Ltd T/A Nu Force Security Services, Print S4692 (AIRCFB, Giudice, J, Watson SDP, Whelan C, 7 April 2000), [7].
[12] (2014) 240 IR 377.
[13] (2011) 211 IR 374 .
[14] (1997) 76 IR 180, 181.
[15] (1964) 112 CLR 125, 129.
[16] Respondent’s submissions at 4.7.
[17] [2021] FWC 5041, [43] and [53].
[18] Explanatory Memorandum, Fair Work Amendment Bill 2012.
[19]Fair Work Act 2009 (Cth) s 611(1).
[20] Ibid ss. (2).
[21] Amanda Hill v Melbourne International Shooting Club Inc[2022] FWC 1412, [38].
[22] Applicant’s outline of submissions - costs para 18.
[23] See Fair Work Act 2009 (Cth) s 400A.
[24] R v Moore; Ex Parte Federated Miscellaneous Workers’ Union ofAustralia (1978) 140 CLR 470.
[25] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014, [10], citing Wodonga Rural City Council v Lewis, PR956243, at [6] and Deane v Paper Australia Pty Ltd, PR932454, at [7] and [8].
[26] (1997) 76 IR 180,181.
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