Brad Mather v Seeley International Pty Ltd

[2014] FWC 6150

[2014] FWC 6150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brad Mather
v
Seeley International Pty Ltd
(U2014/5484)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 SEPTEMBER 2014

Application for relief from unfair dismissal - costs application.

[1] Seeley International Pty Ltd has applied for cost against Mr Brad Mather.

[2] On 3 June 2014, I dismissed Mr Mather’s application for an extension of time. 1

[3] Seeley submitted that costs should be awarded against Mr Mather because it should have been reasonably apparent to Mr Mather that his unfair dismissal application had no reasonable prospects of success and that he made his application without reasonable cause. 2

[4] Seeley submitted that Mr Mather had not provided an acceptable explanation for the delay in lodging his application and that the evidence he had filed was insufficient to warrant the exercise of the discretion to extend time. 3

[5] It submitted that only Mr Mather knew the reasons for the delay. It submitted that Mr Mather relied upon his belief that his lawyers had lodged the application and he was only told on 19 February 2014 that such an application had not been lodged. 4

[6] Seeley noted that Mr Mather did not call his lawyer to give evidence on his behalf. His lawyer did give evidence, having been summonsed by the Fair Work Commission, and his evidence did not support Mr Mather’s evidence. Seeley submitted that Mr Mather did not call his lawyer because he knew his evidence would not have assisted him. 5

[7] Seeley submitted that even if representative error was established, Mr Mather did not have an explanation for why it took him a further 16 days, after being advised that his application had not been filed by his lawyers, to lodge an application. Seeley submitted, that having been told that his application had not been made, he called the Commission but did not make a telephone application. It was submitted that either at the time he filed his application or when Seeley filed its submissions objecting to the extension of time that Mr Mather should have been aware that his failure to explain the delay between 19 February 2013 and 12 March 2013 was fatal to his claim. 6

[8] It was further submitted that Mr Mather had stated in his application dated 6 March 2013 that he had only just been notified that his application had not been made and that was not true as he had been told on 19 February 2013.

[9] Seeley submitted that the Commission should in its discretion award costs and it relied upon other decisions of the Commission where costs were awarded.

[10] Seeley submitted in the alternative that after receiving its submissions and witness statements Mr Mather should have apprehended the difficulties he faced in obtaining an extension of time. 7

[11] Seeley submitted that on Mr Mather’s own evidence he had no reasonable substantial prospect of success. 8

[12] Mr Mather submitted that the reason for the delay is only one of the matters that the Commission must have regard to when deciding if there are exceptional circumstances.

[13] Mr Mather submitted that in relation to some of the criteria there were factual disputes between the parties in particular in relation to the merits of Mr Mather’s claim that he had been unfairly dismissed. 9

[14] It was submitted that, in the event that I found that Mr Mather made the application without reasonable cause or that it should have been apparent to him that his application had no reasonable prospects of success, I should not in my discretion award costs against Mr Mather.

[15] It was submitted that Mr Mather was unfamiliar with the law and procedures of the Commission and he suffered at the time from a psychological illness. Further, it was submitted that Seeley never put Mr Mather on notice that it would seek costs and a costs order would have a significant punitive effect on Mr Mather.

[16] Affidavits of Mr Paul Gatto, Mr Mather’s solicitor and Mr Mather were filed which addressed Mr Mather’s situation. No objection was taken by Seeley to this evidence being received and no request was made for a hearing to permit either witness to be cross examined.

[17] The parties agreed that the costs application could be dealt with on the papers.

[18] The question to be determined is whether Mr Mather’s application for an extension of time was made without reasonable cause or had no reasonable prospects of success.

[19] The test to be applied in determining whether an application had no reasonable prospects of success or was made without reasonable cause is an objective one.

[20] The Full Bench in ACI Operations Pty Ltd v Mr Dale Cook 10 adopted the approach of Commissioner Thatcher in Walker v Mittigong Sands Pty Ltd:11

“[11] The general position in proceedings before Fair Work Australia is that each party bears their own costs: s.611(1). However costs may be awarded in either of the circumstances described in s.611(2). In this case it is contended that the appeal by ACI had “no reasonable prospect of success.” If such a finding is made Fair Work Australia has discretion to make an order for costs.

[12] After reviewing relevant authorities on the power to order the payment of costs and the notion of “no reasonable prospect of success”, Commissioner Thatcher in Walker v Mittagong Sands Pty Ltd 3 said:

“[44] In relation to the criteria ‘without reasonable cause’ and ‘no reasonable prospect of success’, I have concluded that:

(a) the criteria ‘no reasonable prospect of success’ in paragraph 611(2)(b) is lower and wider than the term ‘without reasonable cause’ referred to in paragraph 611(2)(a), which is similar to the test traditionally applied by a court to summarily dismiss actions. Circumstances which satisfy the ‘without reasonable cause’ test would be likely to satisfy the ‘no reasonable prospect of success’ criterion, but the reverse would not necessarily apply.

(b) when FWA is required to form an opinion as to whether the application had a reasonable prospect of success, it is not to undertake an assessment of whether a certain and concluded determination could be made that the proceedings would necessarily fail. The test in paragraph 611(2)(b) is not about whether there is no ‘real’ prospect of success and does not of necessity require that the proceedings were hopeless or bound to fail (by applying a test such as whether an application is manifestly untenable or groundless).

(c) a similar approach should be taken by FWA to the construction of the expression ‘no reasonable prospect of success’ as was adopted by the majority of members of the High Court in Spencer in respect of the term ‘no reasonable prospect’, namely:

“No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like ‘no reasonable prospect’ is to be avoided. ... Rather, full weight must be given to the expression as a whole.”

(d) it is a matter of judgment, sometimes of fine judgment, in all of the circumstances of a particular case whether an application or response had no reasonable prospect of success.

(e) an assessment of whether an application or response was made without reasonable cause or had no reasonable prospect of success should be undertaken with caution, particularly when the matter had not been determined by FWA and questions of fact and issues of law are important and in dispute.”

[13] We respectfully endorse this summary of the approach to be adopted.”

[21] I do not accept that Mr Mather’s failure to call evidence to support his explanation of the reasons for the delay would cause me to find that Mr Mather’s case had no reasonable prospects of success. It is not surprising that an unrepresented applicant is unaware of the need to provide additional evidence to support his own evidence. I do not accept that Mr Mather did not call this evidence because he knew it would harm his case. In the decision at first instance, I did not find that Mr Mather knew that his lawyers did not act for him in his unfair dismissal matter. I found that it was likely that Mr Mather was confused about the matters his lawyers were acting in.

[22] While I found that Mr Mather’s explanation of the reasons for the delay, particularly after he was advised that his lawyer had not lodged his application weighed against a finding that there were exceptional circumstances, this was not a finding that his explanation for the delay, namely that he sought advice and assistance to lodge the application, was either unarguable or had no reasonable prospect of weighing in favour of granting an extension of time. I found that other factors weighed in favour of granting the application or were neutral considerations. It cannot be concluded objectively that Mr Mather’s application for an extension of time had no reasonable prospects of success.

[23] I also do not accept that the application for an extension of time was made without reasonable cause.

[24] I do not consider that, on the facts known to Mr Mather when he made his application, his application for an extension of time had no reasonable prospects of success or that the filing of material by Seeley should have changed his assessment of his prospects of success.

[25] The primary position is that parties, in unfair dismissal matters, bear their own costs. There was nothing put as to why, even if I had found that the application was made without reasonable cause or had no reasonable prospects of success, I should exercise my discretion to award costs against Mr Mather.

[26] While the test in determining if the application was made without reasonable cause or had no reasonable prospects of success is an objective test, I can have regard to Mr Mather’s actual situation when deciding whether to exercise my discretion to award costs.

[27] Mr Mather was unrepresented in this matter and he did not receive advice about the approach of the Commission to applications for extensions of time. I accept that an unrepresented party should understand that the use of the term “exceptional circumstances” suggests that it is not a simple matter to obtain an extension of time. However, given that the decision to extend time involves a consideration of a number of criteria as well as a discretionary consideration, it cannot be said that this is a simple area of the law for an unrepresented applicant to understand.

[28] Mr Mather suffered a psychological illness during this time. 12 He was unable to obtain legal advice about this application in part because he was not able to afford legal representation.

[29] Mr Mather remains unemployed and in difficult financial circumstances.

[30] Even if Mr Mather’s application was made without reasonable cause or had no reasonable prospects of success in all the circumstances, I would not exercise my discretion to award costs in favour of Seeley. The application for costs is therefore dismissed.

DEPUTY PRESIDENT

 1   [2014] FWC 3650

 2 Section 611 of the Fair Work Act 2009

 3   Submissions of the Respondent 4 July 2014

 4   Ibid at [12]

 5   Ibid at [13]

 6   Ibid at [15]

 7   Ibid at [21]

 8   Ibid at [23]

 9   Submissions of the applicant at [17]

 10   [2012] FWAFB 3292 see also McKinnon v Eventide Homes (Stawell) Inc [2013] FWCFB 9405

 11   [2011] FWA 2225

 12   See Affidavit of Paul Gatto

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