Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia v Aurora Energy Pty Ltd

[2014] FCCA 1230

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v AURORA ENERGY PTY LTD [2014] FCCA 1230

Catchwords:
INDUSTRIAL LAW – Ruling on costs application.

Legislation:  
Fair Work Act 2009 (Cth), s.546

Applicant: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Respondent: AURORA ENERGY PTY LTD

File Number: LNG 36 of 2013

Judgment of: Judge Burchardt

Hearing date: Heard on the papers

Date of Last Submission: 20 May 2014

Delivered at: Melbourne

Delivered on: 19 June 2014

REPRESENTATION

Counsel for the Applicant: Mr McCauley

Solicitors for the Applicant: Timothy McCauley

Counsel for the Respondent: Mr Barclay

Solicitors for the Respondent: Page Seager Lawyers

ORDERS

1. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

LNG 36 of 2013

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Applicant

And

AURORA ENERGY PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is a costs application. On 14 April 2014, the applicant filed a Notice of Discontinuance in relation to its Application filed on 28 October 2013. That application sought declarations and an order under s.546 of the Fair Work Act 2009 (Cth) imposing a pecuniary penalty on the respondent for breach of right of entry provisions in the Act.

2. The application was supported by a statement of claim which in due course was the subject of a defence and response.

3. By agreement between the parties, this matter has been determined by written submissions only.

4. It is clear from the materials taken as a whole that there has been an ongoing dispute between the applicant and the respondent about right of entry provisions and that the parties continue to disagree.

5. Neither party has sought to conduct this proceeding with oral evidence or oral submissions.  For reasons that will become apparent, this is important.

6. In the course of the proceedings, various affidavits have been filed by the parties.  They have not been tested by cross-examination.  The Affidavit of Todd Lambert filed on 29 January 2014 deposes to the basis upon which Mr Lambert says that, as an organiser for the applicant, he sought to enter premises owned by the respondent on two occasions and was prevented from doing so.  It is clear that the entry notices forwarded to the respondent by Mr Lambert were in general terms.  One alleged contravention was “failure to comply with the dispute settlement procedure contained in the Enterprise Agreement”.  The other related to “underpayment of wages, underpayment of overtime”.

7. Following the service of these two notices, there was what one might regard as somewhat self-serving correspondence between the parties showing, in my view, a measure of tactical awareness on the part of both.  The respondent sought further details of the alleged contraventions or breaches and the applicant, to an extent, provided further details.

8. As indicated, notwithstanding the filing of affidavit material, the applicant filed its Notice of Discontinuance on 14 April 2014.  On 14 March 2014, the respondent wrote inter alia to Simon Absolom, an employee who is also a member of the applicant (exhibit TM4 to the Affidavit of Mr Timothy McCauley affirmed on 19 May 2014).  That letter informed Mr Absolom that his employment would transfer directly from the respondent to Tas Networks on 1 July 2014.  It seems clear to me that it was following the receipt of this information, which effectively means that the respondent ceases to employ any members of the applicant, that the Notice of Discontinuance was filed.

9. Both parties have filed comprehensive and, if I may say so, able submissions in support of their positions.  The respondent’s submissions in support of the application for costs were filed on

   
   

   6 May 2014.

10. Notwithstanding the skill and detail of these written submissions, I do not propose to traverse them in detail as I have come to a clear view about this matter.

11. The thrust of what the respondent had to say was that the application of the applicant was always one which had no substantial prospects of success and/or which was brought vexatiously.  It was put, in essence, that the applicant’s case could never have been made out, even accepting Mr Lambert’s evidence in its entirety.

12. More precisely, it was put that the particulars in the Notices of Intention to Enter were wholly deficient and incapable of properly constituting an entry notice in accordance with the Fair Work Act2009 (Cth), such as to give rise to any obligations on the part of the respondent.

13. It was further put that, in the circumstances revealed by the evidence, there was no refusal or unduly delayed entry. It was further put again that there was no hindrance to the exercise of rights under the Fair Work Act and that the respondent, in any event, complied with notices given to it for later production of documents. Criticism was made of the basis upon which the proceedings were commenced and it was said that this was vexatious.

14. Paraphrasing once again, the written submissions on the part of the applicant (leaving aside recitations of the law which do not seem to me to be controversial as between the parties) essentially submitted that the particulars provided by Mr Lambert were not unarguably insufficient. It was further submitted that there had indeed been refusal of entry, that there was indeed hindrance of exercise to rights and that the proceeding was not instituted vexatiously.

15. The critical difficulty in this case, in my view, is that the matter did not proceed to final judgment.  In effect, the parties are asking the Court to rule as though everything that could have been said by way of evidence had been said and been evaluated as to its truthfulness or otherwise in circumstances where that is clearly not the case.

16. The test propounded by the respondent, which is the applicant for costs, is put in the following terms, with which I agree, at paragraph 2.3 of its written submissions:-

    In considering whether the Applicant commenced the proceedings without reasonable cause, the Court should assess whether, upon the facts apparent to the Applicant at the time of instituting the proceedings, there were no substantial prospects of success. (emphasis in original)

17. If I construe the affidavit material correctly, the position contended for by the applicant is that, following disputation over rights of entry, Mr Lambert, who had sought advice from a superior, served the two contentious notices and sought to act upon them.  Although, in the ultimate, his activities produced a response in the form of documents requested, the fact is he did not succeed in marching, as it were, forthwith into the premises of the respondent on any view.

18. What might be thought to be sufficient particularisation for the purposes of the Fair Work Act is, as the parties’ written submissions made clear, a matter of judgment in each instance. The question is not whether, in the ultimate, the applicant might be shown to have provided sufficient detail, but whether the detail in fact provided was incapable on any reasonable view of being made out as sufficient.

19. In the rough and tumble world of industrial relations, where of necessity an applicant union will more commonly have generalised suspicions than precise ones, the question as to whether the degree of specificity provided by Mr Lambert was sufficient is a matter of fine judgment. Judgment is inhibited by the fact that, as already indicated, the evidence was never closed.

20. In my view, bearing in mind that I am not being required under the civil penalty regime to determine this as following a final hearing, but rather looking to the reasonable state of knowledge or otherwise of the applicant at the time proceedings were commenced, it cannot be said that this case was reasonably assessed as having absolutely no chances of success or, to put the matter in the language of the respondent’s submission, having no substantial prospects of success.

21. Similarly, and without deciding whether the conduct of the respondents involved an absence of refusal because there was a conditional permission to enter, the fact is that Mr Lambert did not succeed in walking unhindered into the respondent’s premises in circumstances where that was what he was seeking to do.  While one might agree or disagree with the characterisation of this conduct, it does not give rise to the proposition in my view that the application had no substantial prospects of success on this ground.

22. Furthermore, I do not accept the proposition at paragraph 6.6 of the respondent’s written submission which is to the following effect:-

    As the Respondent understands the Applicant’s case, the applicant contended that by requesting further particulars or alternatively by informing Mr Lambert upon his attendance at either premises that the Respondent did not consider the Applicant’s notices to be valid, the Respondent hindered Mr Lambert in the exercise of his rights under the entry notices. 

    That contention could not have been sustained.

23. While it is true, as the respondent’s written submissions assert, that there is no evidence that Mr Lambert intended to do anything other than deliver a notice for later access to documents on each occasion, the fact is that the evidence was not closed and Mr Lambert has never been called to say what, if anything, he might otherwise have sought to do under the notices.  While I would accept that there is considerable room for doubt that Mr Lambert would have made out his case, it is a different thing altogether to say that it had no substantial prospects of success.

24. The further and final submission is that the application was brought vexatiously.  It seems to me clear on the materials that the cessation of the proceeding followed both a foreshadowed amendment to the response (which would have put the applicant at risk of penalties itself) but also the receipt of intelligence that the respondent was about to cease being the employer of the applicant’s members.

25. It is also clear that there has been an ongoing difference of opinion, somewhat keenly contested it would appear, as to the scope and effect of right of entry clauses for members of the applicant’s organisation.

26. In these circumstances, it would be wholly beyond me without a testing of the evidence to conclude that the intentions of the applicant were vexatious within the meaning of the authorities quoted by the respondent, which I would accept correctly characterise the law.

27. In all the circumstances, while there is no doubt that the application always faced serious difficulties, it was not such in my view as properly to be described as having been instituted without reasonable cause or vexatiously.  There will accordingly be no order as to costs as the respondent seeks.

28. Having said that, however, I make it clear that there should not be any costs of the respondent’s application for costs.  It has not been successful but it was by no means devoid of merit.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  19 June 2014