Dean Weikl v Western Australian Turf Club T/A Perth Racing
[2019] FWCFB 5262
•30 JULY 2019
| [2019] FWCFB 5262 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
s.611—Costs
Dean Weikl
v
Western Australian Turf Club T/A Perth Racing
(C2019/2063)
VICE PRESIDENT CATANZARITI | SYDNEY, 30 JULY 2019 |
Appeal against order PR705631 of Commissioner Williams at Perth in matter number C2018/5013 – application for permission to appeal dismissed due to appellant’s failure to attend – costs application by respondent in the appeal – Fair Work Act 2009 (Cth) s.611 – appeal had no reasonable prospects of success – indemnity costs ordered.
[1] On 29 March 2019, Dean Weikl (the Appellant) lodged an appeal with the Fair Work Commission (the Commission) under s.604 of the Fair Work Act 2009 (Cth) (the FW Act) against a costs order that Commissioner Williams issued on 7 March 2019. This was one day outside the statutory timeframe of 21 days from the date of the order being appealed.
[2] The Commissioner’s costs order required the Appellant to pay Western Australia Turf Club T/A Perth Racing (the Respondent) $404.50 in costs by 28 March 2019. The Appellant sought that the order be stayed pending the determination of his appeal.
[3] On 5 April 2019, Senior Deputy President Hamberger heard and dismissed the Appellant’s stay application. At that hearing, the Senior Deputy President canvassed the grounds of appeal the Appellant had set out in his notice of appeal with him and his representative. In particular, the Senior Deputy President explored and rejected as arguable the allegations that:
• the Commissioner had denied the Appellant procedural fairness because documents were initially sent by email to an email address that he was apparently unable to access, even though the Appellant had provided that email address on his original application form for the Commission to deal with a dispute; 1 and
• the Commissioner had taken into account an irrelevant consideration by having regard to information about a civil suit between the Appellant and another employee of the Respondent. 2
[4] The Appellant added in oral submissions at the stay hearing that the Commissioner’s costs order should be stayed because it would cause him financial hardship, because the order was ‘un-Australian’ and ‘unfair and unjust’, and because the Commissioner determined the costs application the subject of the appeal (the first costs application) without holding an attendance hearing. 3 However, the Appellant was unable to elaborate on these in any meaningful way. Further, in relation to the procedural fairness argument raised in the notice of appeal, the Appellant ultimately conceded that he and his representative were aware of the first costs application prior to the Commissioner deciding to award costs.4 The Appellant had had an opportunity to respond, and did in fact respond, to the first costs application.5
[5] The Senior Deputy President found that the Appellant had not disclosed an arguable case, and therefore was not required to consider whether the balance of convenience favoured a stay. At the close of the stay hearing, the Senior Deputy President stated:
‘I’m not going to grant the stay. I am not satisfied that you – that anything I’ve heard today or anything that’s in the notice of appeal suggests to me that there’s any prospect of the appeal being successful, which means, Mr Weikl, that you’re required to pay the amount in accordance with the order. I just want you to think very carefully about taking the appeal any further because there are – you do run the risk, me having made this finding, you run the risk that you may be subject to a further costs order if you pursue an appeal which, it should be reasonably apparent to you, has no reasonable prospects of success.’ 6
[6] The appeal was listed for hearing on the issue of permission to appeal only on 14 May 2019. Vice President Catanzariti directed the Appellant file an outline of submissions addressing the requirements for an extension of time to file his appeal, and for permission to appeal, by 7 May 2019.
[7] The Appellant did not file any material, including with respect to the extension of time issue, with the Commission by 7 May 2019.
[8] On 10 May 2019, the Appellant’s representative emailed the Commission requesting an adjournment. He submitted that the Appellant ‘has not [had] a sufficient and fair time to prepare for the appeal on the 14th May 2019’. The Vice President’s chambers responded later that same day, advising that the Appellant would need to make his adjournment request before the Full Bench on the day of the hearing, and that if the Full Bench was not minded to grant the adjournment, then the hearing would proceed as listed.
[9] At 11:00 am (AEST) on 14 May 2019, the Respondent and its representative were present at the Commission in Perth to participate in the hearing as listed, but neither the Appellant nor his representative attended. We subsequently dismissed the appeal under s.587 of the FW Act.
[10] At 1:43 pm (AEST) on 14 May 2019, the Appellant’s representative emailed the Commission the following:
‘Can you please extend my sincere aploigies [sic] to the full bench for not being able to attend the appeal.
Due to circumstances beyond mine or my clients [sic] control we were unable to attend the hearing at 9:00 am this morning 14/05/2019
I however did endeavour to contact you by phone in the hopes that I could advise you of the situation, however I could not do so.
Could you please advice [sic] me the outcome of today's appeal hearing and the steps I can take to make an application to the commission to hear my clients ‘reasonable’ explanantion [sic] of why there was no attendance today.
My client does take the matter extremely seriously, however there can be situations which can be beyond a persons [sic] control and it is not mine nor my clients [sic] intention to not show up for his appeal or waste the commissions time and resources.
I look forward to hearting [sic] from you soon.’
[11] We note that the Commission did not receive any communication, other than the email set out above, from the Appellant or his representative on 14 May 2019. Further, the email provides no detail of the ‘circumstances’ that the Appellant and his representative say prevented them from attending the hearing.
[12] On 28 May 2019, the Respondent filed an application under s.611 of the FW Act for costs it incurred in respect of the appeal, and submissions in support of that application.
[13] On 3 June 2019, Vice President Catanzariti directed the Appellant to file submissions in response to the costs application by 7 June 2019. The Vice President further directed that the Respondent may file any other submissions in reply to the Appellant’s material by 12 June 2019.
[14] The Appellant did not file any material with the Commission by 7 June 2019. Accordingly, reply submissions were not necessary.
[15] We have heard nothing further from the Appellant or his representative since the 14 May 2019 email reproduced above.
Consideration
[16] Section 611 of the FW Act reads:
‘611 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).’
[17] The primary position is that each party bears its own costs in proceedings before the Commission. This is designed to enable a person to make or defend an application without being burdened with the risk that an order for costs might be made against the person.
[18] However, s.611 of the FW Act provides exceptions to that general rule. It provides the Commission with the discretion to order that a party pay some or all of another party’s costs where there has been what might broadly be termed ‘an abuse of process’ by that other party.
[19] The Respondent submits that we should order costs pursuant to s.611(2)(b) of the FW Act. In Keep v Performance Automobiles Pty Ltd, 7a Full Bench of the Commission summarised the principles relevant to that subsection:
‘[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.
[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;
“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.’ [endnotes omitted]
[20] Similarly, the Full Bench in Baker v Salva Resources Pty Ltd 8 stated:
‘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 to be not reasonably arguable.’ [endnotes omitted]
[21] We acknowledge that we should be cautious about awarding costs. However, we think that the course of conduct of the Appellant and his representative is the type of conduct Parliament intended to attract a costs order. Given the Appellant’s failure to comply with the Vice President’s directions, we can only rely on what he has said in his notice of appeal, and what he said before the Senior Deputy President at the stay hearing, to discern the basis of his appeal. As we have already mentioned, neither the Appellant’s submissions at the stay hearing nor his grounds of appeal persuaded the Senior Deputy President that he had an arguable case. On the material before us, we agree with the Senior Deputy President’s assessment of the Appellant’s arguments, and consider that it should have been reasonably apparent to the Appellant that he would not reasonably succeed on the basis of those arguments. This is especially so in relation to the Appellant’s implausible denial in his notice of appeal that the first costs application was never served on him, considering that he conceded during the stay hearing that he did in fact receive it, and implicitly conceded that he had had an opportunity to respond to it. 9
[22] Additionally, none of the scant material we have before us from the Appellant addresses the fact that his appeal was lodged out of time, or argues in favour of obtaining an extension of time in which to lodge it. We find it very difficult to see how the Appellant could reasonably have thought he would succeed in obtaining an extension of time when he neither filed any submissions to attempt to persuade us, nor attended the hearing to make oral submissions.
Conclusion
[23] We are satisfied that it should have been reasonably apparent to the Appellant that his application had no reasonable prospects of success. We order that the Appellant pay the Respondent’s costs in this appeal on an indemnity basis. If the parties are unable to agree on the quantum of costs, they are at liberty to contact Vice President Catanzariti’s chambers to request that this matter be relisted.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR710799>
1 PN49
2 PN113-22.
3 PN29. (All subsequent transcript references are to the transcript of the 5 April 2019 stay hearing.)
4 PN78-83.
5 The Commission’s records reflect that the appellant filed lengthy submissions in response to the first costs application on 11 December 2018. See also PN219.
6 PN223.
7 [2015] FWCFB 1956 [17].
8 [2011] FWAFB 4014 [10].
9 PN84-7.
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