Brett Haigh v Bradken Resources Pty Ltd
[2013] FWCFB 6837
•24 SEPTEMBER 2013
[2013] FWCFB 6837 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Bradken Resources Pty Ltd
(C2012/6528)
DEPUTY PRESIDENT MCCARTHY | PERTH, 24 SEPTEMBER 2013 |
Application for costs Appeal against decision [[2012] FWA 9780] of Commissioner Williams at Perth WA on 20th November 2012 in matter number U2012/4952.
[1] On 28 June 2013 this Full Bench issued a decision ([2013] FWCFB 2918) (the appeal decision) on an appeal by Mr Brett Haigh (the Applicant and the Appellant at previous instance) against a decision issued ([2012] FWA 9780) by a member of the Fair Work Commission (FWC). In that decision we granted leave to appeal, upheld the appeal and remitted the matter to Commissioner Cloghan to deal with.
[2] On 8 July 2013 the Applicant lodged an application for costs (the costs application). The grounds listed in the costs application were:
1. Seeking Legal Representation.
2. Financial Hardship - Being Unemployed.
3. Undue Medical Stress - Seeking Medical Assistance/ Priscription [sic] Medication.
4. Being assured by representation of being reinstated to my former position of
employment.
[3] Directions were issued on 11 July 2013 requiring a response to the costs application by Bradken Resources Pty Ltd (the Respondent) and a reply by the Applicant. We have decided to rely on the grounds in the costs application and to determine this matter on the basis of the materials before us.
[4] The Fair Work Act 2009 (the FW Act) provides for costs in s.611 in the following terms:
“(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).”
[5] The conditions necessary here for the FWC to be able to award costs are confined to circumstances where we find that the Respondent responded to the appeal instigated by the Applicant vexatiously, or without reasonable cause or where the Respondent’s response to the appeal had no reasonable prospects of success.
[6] The circumstances here are that the Applicant lodged an appeal and gave six grounds for that appeal. The grounds relied on were a mixture of asserted factual errors, procedural errors, lack of reasons and what was said to be a plainly unjust and unreasonable decision.
[7] Apart from one element all of the other appeal grounds were dismissed. In essence then the Applicant here can only rely on the Respondent having acted vexatiously or without reasonable cause or without a reasonable prospect of success by not consenting to the appeal that he lodged.
[8] We find that the Respondent’s case was clearly arguable in the appeal. The Applicant’s grounds and submissions here show that the Applicant seems to be under a misapprehension that because he succeed in the appeal that costs of various types that he incurred should be awarded to him. The facts underpinning the grounds he put forward in his cost application may well be accurate but they are not grounds that can satisfy the condition precedent for costs to be able to be awarded.
[9] We find that the Respondent did not act vexatiously or without reasonable cause in disputing the appeal the Applicant lodged. The Respondent also clearly had an arguable case, indeed a quite strongly arguable case thus having a reasonable prospect of succeeding in its argument
[10] The application for costs is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr B Haigh self-represented
Mr D Jones (CCI) for the Respondent
Final written submissions:
Respondent 24 July 2013
Applicant 31 July 2013
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