Chad Allan Nowak v Mark Lewis, Scott Duffy, Warrick Hickson, Jonathan Hanton, Civil Aviation Safety Authority, Uas Pacific Pty Ltd
[2024] FWC 2716
•5 NOVEMBER 2024
| [2024] FWC 2716 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Geoffrey Brian Barker; Chad Allan Nowak
v
Mark Lewis, Scott Duffy, Warrick Hickson, Jonathan Hanton, Civil Aviation Safety Authority, Uas Pacific Pty Ltd
(AB2023/666; AB2024/20)
| DEPUTY PRESIDENT LAKE | BRISBANE, 5 NOVEMBER 2024 |
Application for costs – application for an FWC order to stop bullying – whether application was made without reasonable cause – (s.611(2)(a)) – whether reasonably apparent application had no prospect of success (s.611(2)(b)) – application not made without reasonable cause – not apparent application had no reasonable prospect of success – costs application dismissed.
Mr Geoffrey Brian Barker and Mr Chad Allan Nowak (the Applicant) lodged an application seeking an order from the Fair Work Commission (the Commission) to Stop Bullying on the Civil Aviation Safety Authority (CASA) and Mr Mark Lewis, Mr Scott Duffy, Mr Warrick Hickson and Mr Jonathan Hanton (the Persons Named) under s.789FC of the Fair Work Act 2009 (Cth) (the Act).
A conciliation was held on 22 March 2024 and the matter was not resolved. The matter was then listed for hearing on 18 June 2024. Mr Barker was unwell and the preliminary matters on Hearing were delivered on 18 June 2024. The second day of Hearing was listed on 25 June 2024. I delivered my decision ex tempore on 25 June 2024.
On 5 July 2024, the Respondent (the Costs Applicant) lodged an application for costs against Mr Barker and Mr Chad Nowak (the Costs Respondent) under s.611 of the Act. The Costs Applicant seeks an order for costs in the amount of $44,584.59. I decided that this application should be determined on the papers.
Should Barker and Nowak bear the Costs Applicant’s costs?
Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances.
Section 611(2) of the Act provides as follows:
“(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.”
In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (‘Church’),[1] the Full Bench stated that “without reasonable cause” within the meaning of s.611(2)(a) does not apply solely on the basis that an application is unsuccessful.[2] It takes into account the facts known to the party at the time of instituting the proceeding that indicate there was no substantial prospect of success.[3] The application must have been “so obviously untenable that it cannot possibly succeed”.[4]
In Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10], the Full Bench noted the following:
“The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
·‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
·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.[5]
The Full Bench summarised instances in Post v NTI Limited t/a NTI [2016] FWCFB 6765 where costs would be awarded under s.611 of the Act.
“There should be some ‘special or unusual feature’ may include the following circumstances identified by Sheppard J in the leading case of Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited.
However, the categories in which discretion may be exercised are not closed:
·where a party makes allegations of fraud, knowing them to be false, or makes irrelevant allegations of fraud;
·where there is evidence of misconduct that causes a loss of time to the court and to the other parties;
·where proceedings were commenced for some ulterior motive;
·where proceedings were commenced or continued in wilful disregard of known facts or clearly established law;
·where allegations were made which ought never to have been made;
·where the proceeding was unduly prolonged by groundless contentions;
·where there was an imprudent refusal of an offer to compromise (citations omitted).”
I note that this matter has a long history which I will not go further into. The matter was originally determined by Commissioner Hunt in [2023] FWC 2576. Commissioner Hunt noted the following at [103]:
“Mr Lewis would not have any involvement with Mr Nowak, and CASA had implemented an effective ring-fencing of any oversight by Mr Lewis or Mr Nowak. He won’t be able to consider or review emails with respect to Mr Nowak, nor have any access on CASA’s case management system. He is prevented from emailing or contacting Mr Nowak.”
Subsequently, this undertaking was extended to Mr Barker on 24 August 2023.
I am satisfied that the Applications were made without reasonable cause given that the Costs Respondent had no interaction with the Persons Named since the decision was made by Commissioner Hunt on 5 October 2023. The Costs Respondent’s denial of licenses or internal promotions made by CASA did not prompt a reason to lodge a fresh application.
A Calderbank letter was sent to the Costs Respondents on 14 February 2024 informing them of this. From this point, the Costs Respondents should have been aware that the matter did not have prospects of success. I find that Mr Barker made the matter unnecessarily complex surrounding the licenses approvals with the anti-bullying jurisdiction which made Mr Barker focus on the wrong issues. However, given the complex history between the Costs Applicant and Costs Respondent, it is noted that they could have some apprehension regarding the contents of the letter.
However, I am not satisfied that the Application had unreasonable prospects of success where it was “manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”
The decision made by Commissioner Hunt left the matter open for Mr Nowak if there has been bullying in the future. The matter was not so untenable that the matter had no reasonable prospects of success until the Costs Respondents failed to provide materials regarding interactions with the Persons Named since the undertaking. It was from this point forward that the Costs Respondents did not have reasonable prospects of success.
Conclusion
Therefore, I exercise my discretion not to award costs in favour of the Costs Applicant in this matter. However, the Costs Respondents are warned that further applications made to the Commission by either of the Costs Respondents may be subject to costs upon being informed by the Commission about the limitations of the anti-bullying jurisdiction. The Commission should not be used as an avenue to assess administrative decisions.
Accordingly, CASA’s Costs Application pursuant to s 611(2) is dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] [2014] FWCFB at [30]-[33].
[2] Ibid at [30].
[3] see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, cited with approval in Church at [30].
[4] Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 at [17].
[5] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10].
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