Dean Weikl v Western Australian Turf Club T/A Perth Racing

[2019] FWC 559

[2019] FWC 559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Dean Weikl
v
Western Australian Turf Club T/A Perth Racing
(C2018/5013)

COMMISSIONER WILLIAMS PERTH, 7 FEBRUARY 2019

s.611 - Application for costs.

[1] This decision concerns an application for costs made by the Western Australian Turf Club T/A Perth Racing (the Turf Club or the Costs Applicant) under section 611 of the Fair Work Act 2009 (the Act). The respondent to the costs application is Mr Dean Weikl (Mr Weikl or the Costs Respondent).

[2] The application for costs follows the Commission’s decision 1 issued on 15 October 2018 regarding application C2018/5013. In that decision the Commission upheld the Costs Applicant’s submission that the Commission had no jurisdiction to deal with the dispute raised in that application and so the application was dismissed.

Background

[3] On 10 September 2018 Mr Weikl made an application under section 739 of the Act. The application identified his representative as Mr Christopher Bristow (Mr Bristow) from the organisation That Guys Advocacy. The application was signed by Mr Weikl himself. The respondent was the Western Australian Turf Club T/A Perth Racing.

[4] The application was hand written and only partially legible.

[5] Mr Weikl relevantly completed the application as follows.

[6] In response to question 1.2 regarding what industrial instrument or other written agreement covers the employment relationship and contains the dispute resolution procedure relevant to this application he specified the Security Industry Award 2010 [MA000016] (the Award), the Perth Racing Enterprise Agreement 2016 [AE418617] (the Agreement), the Perth Racing Code of Conduct, the Perth Racing EEO Document and the Perth Racing Grievance Policy.

[7] In response to question 1.3 regarding what clause of the industrial instrument or other written agreement contains the dispute settlement procedure he specified clause 18.1 of the Agreement, clause 3.10−General Obligation of the Perth Racing Code of Conduct and sections 7, 8 and 9 of the Perth Racing EEO Document. Mr Weikl did not attach a copy of any of these clauses as the question directed him to.

[8] In response to question 1.4 regarding what clause of the industrial instrument or other written agreement the dispute relates to Mr Weikl specified that “NES - flexible working arrangements - a casual employee can make requests where there’s a reasonable expectation of continuing work with the employer on a regular or systematic process”. Mr Weikl did not attach a copy of any of this clause as the question directed him to.

[9] In response to question 2.1 regarding what the dispute is about, including by reference to the relevant clauses in the industrial instruments or other written agreements, he specified in summary that,

1. A complaint about the Mr Weikl was made to management on 21 April 2018.

2. The complaint was discussed with Mr Weikl on 25 May 2018 with support person Mr Bristow.

3. On 25 June 2018 Mr Weikl and Mr Bristow met with the Turf Club’s staff and Mr Weikl was advised he was guilty of breach.

4. No information was provided to Mr Weikl and about how the decision was made and the process of investigation was not fair and reasonable.

5. Mr Weikl lodged formal grievance on two occasions (23 August 2018 and 6 September 2018) and has been denied the right to have matter reviewed.

6. Mr Weikl has no right to dispute any breaches of code of conduct or company policy.

[10] Mr Weikl did not reference any of the clauses as the question directed him to.

[11] In response to question 3.1 as to what relief he was seeking by making this application to the Commission, Mr Weikl specified,

1. To have the initial complaint heard fairly and in a reasonable matter.

2. To provide Mr Weikl with compensation to an agreed value due to adverse effects to reputation and ongoing employment.

3. To provide Mr Weikl with paid induction (as employer has not provided induction).

4. To receive paid training in regard to understanding expectation of Perth Racing policies and procedures as Mr Weikl as of 10 September 2018 has had no training.

5. For the Turf Club to implement review of their policies and procedures to ensure compliance with relevant legislation.

6. A withdrawal of the first and final warning letter dated 25 June 2018.

[12] On 14 September 2018 the Commission sent the parties a notice of listing which advised that a conference would be held on 26 September 2018 and that the Turf Club was directed to file a response to the application and serve this on Mr Weikl by Friday, 21 September 2018.

The costs application proceedings

[13] The costs application was made on 28 October 2018. The total costs and disbursements claimed are $3190.

[14] The Commission directed the parties to provide written materials regarding the costs application and advised the parties that it was the Commission’s intention to determine this matter on the papers unless it was necessary to hold a hearing.

[15] Both parties’ representatives have provided materials as directed and I am satisfied it is appropriate in this case to determine this matter on the basis of those written materials provided by the parties and the materials filed regarding the original section 739 application which form part of the Commission’s file.

Factual matters

[16] The affidavit of Ms Jan Homden (Ms Homden), the People and Culture Manager of the Turf Club relevantly says that,

“On 20 April 2018 Mr Weikl was offered a casual position as a security officer with Perth Racing.

During Mr Weikl’s shift, another of Perth Racing’s employees made a complaint alleging that Mr Weikl had made racist comments to him whilst they were working together.

…

Perth Racing investigated the complaint and found the allegations to be substantiated. Due to Mr Weikl not having undertaken the usual induction processes, due to the lack of time between the position being offered and Mr Weikl’s first shift, Perth Racing decided against dismissing Mr Weikl and provided him a written warning instead.

…

In June 2018, Mr Weikl attended the office of Perth Racing nd gave Ms Homden a document titled “Magistrate’s Courts of Western Australia (Civil Jurisdiction) Minor Case Claim (Form 4)”. The document was a claim for damages filed in the Perth Magistrate’s Court registry alleging that the employee whom had complained about Mr Weikl had defamed Mr Weikl by making the complaint alleging that Mr Weikl had made racist and offensive comments to him.”

[17] Ms Homden affidavit says she understands from discussion with the employee that Mr Weikl’s claim in the Magistrates Court has been discontinued due to the claim being outside the jurisdiction of the Court.

[18] On 6 September 2018, Mr Weikl emailed a grievance letter to the Executive Assistant to the Chief Executive Officer of the Turf Club.

[19] Mr Weikl’s grievance contained the following issues which he was unhappy about:

1. The Turf Club’s investigation was unfair and unreasonable; however he did not give any detail as to why the investigation was unfair and unreasonable.

2. The warning letter given to Mr Weikl referred to him making ‘racist’ comments, which offended Mr Weikl.

3. The Turf Club’s discrimination policy referred to the Health and Safety Act 1991 instead of the Health and Safety Act 2011.

[20] Ms Homden provided the Chief Executive Officer with a copy of the investigation that was conducted into the complaint made about Mr Weikl. Given that Mr Weikl’s grievance did not identify the reasons why he felt the investigation was unfair and the statement in the letter that Mr Weikl had made racist comments was factual and the reference in the policy to superseded legislation was of no bearing to the conclusion that Mr Weikl had committed misconduct., Mr Weikl was informed that no further action would be taken by the Turf Club in relation to his grievance.

[21] The Turf Club having received Mr Weikl’s section 739 application instructed Mr Stephen Farrell (Mr Farrell), of the Chamber of Commerce and Industry of Western Australia, to write to Mr Bristow (Mr Weikl’s representative) advising that the application had no merit and there was no basis on which his client Mr Weikl would be able to achieve the outcomes set out in his application.

[22] The letter explained the Commission did not have jurisdiction to deal with his dispute and detailed reasons were provided explaining that.

[23] The letter pointed out the application was made under section 739 of the Act and the limits of that section. The letter explained Mr Weikl’s employment was covered by the Agreement and that clause 18 contains a Dispute Settlement Procedure enabling the Commission to deal with disputes. It was further explained this clause only applies to disputes arising under that Agreement or in relation to the NES.

[24] It was pointed out that it was clear from the application that the dispute Mr Weikl was applying to have the Commission deal with related to a finding by the Turf Club that he had committed misconduct by making an inappropriate racially motivated statement to another employee and the fact the Turf Club had issued him a written warning regarding this and the claim that the Turf Club had denied him procedural fairness and natural justice in coming to its finding.

[25] It was explained there was no clause in the Agreement concerning disciplinary processes or disciplinary penalties and that the NES do not deal with such matters.

[26] Consequently it was explained that Mr Weikl’s dispute is not covered by clause 18 of the Agreement and the Commission does not have jurisdiction to deal with it.

[27] The Turf Club also pointed out that clause 18 requires all parties to agree on the Commission arbitrating a dispute and the Turf Club put Mr Weikl on notice that it will not agree to the Commission arbitrating the dispute.

[28] The letter continued on by saying it should have been reasonably apparent to Mr Weikl when he made the application that there was no prospect for its success as the Commission did not have jurisdiction to deal with his dispute.

[29] The letter advised that the Turf Club intends to make an application for a costs order against Mr Weikl however if he undertakes to discontinue the application by 12 noon Friday, 21 September 2018 the Turf Club will not make such an application.

[30] The letter concluded by stating that the Turf Club would rely upon this letter and the question of costs on an indemnity basis from the date of this letter in accordance with the principles expressed in Calderbank v Calderbank 2.

[31] Neither the Turf Club nor its representative received any response from Mr Weikl or Mr Bristow his representative by 21 September 2018.

[32] Also on 21 September 2018 the Turf Club, in compliance with the Commission’s directions, filed its outline of submissions responding to Mr Weikl’s application and identifying in detail the jurisdictional objection to the application to the effect that the Commission had no jurisdiction under section 739 in the particular circumstances to deal with the dispute Mr Weikl had raised.

[33] Next on 26 September 2018 staff from the Turf club and its representative Mr Farrell attended the conciliation conference before the Commission.

[34] As is recorded in paragraph [4] of the Commission’s decision 3 dismissing Mr Weikl’s application, after the conference ended the Commission emailed the parties and directed Mr Weikl to, within 14 days, either advise that he wished to discontinue his application or alternatively to provide written submissions in response to the jurisdictional objections detailed in paragraphs 12 to 22 of the Turf Club’s outline of submissions dated 21 September 2018.

[35] The 14-day deadline for Mr Weikl’s response fell on 10 October 2018. Within this timeframe Mr Weikl neither discontinued his application nor did he provide any submissions in response to the jurisdictional objections of the Turf Club.

[36] On 11 October 2018 Mr Farrell on behalf of the Turf Club emailed the Commission, copying in both Mr Weikl and his representative, seeking an order from the Commission dismissing the application under section 587 of the Act on the basis that it has no reasonable prospect of success.

[37] As noted above the Commission on 15 October 2018 issued a decision upholding the Turf Club’s jurisdictional objection and dismissing the application.

[38] I found that the Agreement did apply to Mr Weikl’s employment.

[39] I decided that there was no dispute regarding the NES, contrary to how Mr Weikl had answered question 1.4 on his application.

[40] Clause 18 of the Agreement is set out below:

“18 DISPUTE SETTLEMENT PROCEDURE

(a) The provisions in clause 18 will apply to any dispute between an employee covered by this Agreement and Perth Racing about any matter arising under this Agreement or in relation to the National Employment Standards (dispute).

(b) At any or all stages of the procedure below, either party may appoint a representative of their choice in writing, to assist in resolution of the dispute.

(c) If a dispute occurs, the following procedure must be followed:

(i) The employee(s) will discuss the question, dispute or difficulties with their supervisor/manager, who will attempt to resolve the issue.

(ii) If the matter is not resolved, the matter will be referred to more senior management who will attempt to resolve the issue.

(iii) If the matter still remains unresolved, then either party to the dispute may refer the matter to a mutually agreed independent third party for mediation or conciliation. Where the parties to the dispute cannot agree on the appointment of a third party for mediation, then the matter will be referred to the FWC for mediation or conciliation.

(iv) If the matter remains unresolved by mediation or conciliation by the FWC, the FWC may only arbitrate the dispute if at the time of the dispute, each party to the dispute including:

(A) The relevant employee(s);

(B) Any employee(s) representative(s); and

(C) Perth Racing, all agree in writing to authorise the FWC to the arbitrated the dispute.

(v) Any decision made by the FWC in relation to the arbitration of the dispute will only be binding on the parties if at the time of the dispute and prior to the arbitration, each part to the dispute including:

(A) The relevant employee(s);

(B) Any employee(s) representative(s); and

(C) Perth Racing, all agree in writing to be bound by the arbitrated decision of the FWC.

(d) Any arbitrated decision by the FWC is subject to any party to the dispute exercising a right of appeal against the arbitrated decision of the FWC to the Full Bench of the FWC under the FW Act.

(e) While the parties to the dispute are trying to resolve the dispute using the procedures in clause 18:

(i) The employee(s) must continue to perform his or her work as he or she would normally; and

(ii) The employee(s) must comply with any directions given by Perth Racing to perform other available work at the same workplace, or at another workplace.”

[41] As stated by clause 3−Period of Operation, subclause (c) of the Agreement the Award did not apply to Mr Weikl’s employment because the Agreement operates to the exclusion of any modern award or other workplace instrument.

[42] Mr Weikl did not provide to the Commission either with his application, at the conciliation conference, or at any time afterwards copies of the documents he refers to as the Perth Racing Code of Conduct, the Perth Racing EEO Document and the Perth Racing Grievance Policy.

Submissions of the Costs Applicant

[43] On behalf of the Costs Applicant it is submitted that on 18 September 2018, the Costs Applicant wrote to the Costs Respondent advising him that the Commission did not have jurisdiction to deal with his application, there was no prospect of his application succeeding and invited him to discontinue his claim. The Costs Applicant put the Costs Respondent on notice that if the Costs Respondent did not do so, costs on an indemnity basis would be sought from him.

[44] The Costs Respondent neither acknowledged nor responded to the letter.

[45] The Costs Applicant filed a response to application C2018/5013 on 21 September 2018 and then appeared at a conference on 26 September 2018.

[46] Following the conference, the Commission directed the Costs Respondent to file, within 14 days, either submissions addressing the jurisdictional issue raised by the Costs Applicant or discontinue his application.

[47] The Costs Respondent did neither.

[48] On 15 October, the Commission dismissed application C2018/5013.

[49] Section 611 of the Act permits the Commission to use its discretion to order the Costs Respondent to bear some or all of the Costs Applicant’s costs in responding to this application if the Commission is satisfied that:

(a) The Costs Respondent made the application vexatiously or without reasonable cause; or

(b) It should have been reasonably apparent to the Costs Respondent that his application had no reasonable prospects for success.

[50] The Costs Applicant submits that the circumstances of this case fulfil both limbs of section 611(2) of the Act.

Application made vexatiously or without reasonable cause

[51] In Sharn Stanley v QBE Management Services Pty Limited T/A QBE 4, Johns C set out a definition of when an application is made vexatiously. Proceedings are vexatious if:

(a) They are instituted with the intention of annoying or embarrassing the person against whom they are brought.

(b) They are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

(c) Irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

[52] The words “without reasonable cause” was considered in Kanan v Australian Postal and Telecommunications Union 5 where Wilcox J stated:

“It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”

[53] The circumstances in this matter are that the Costs Respondent was not satisfied with the result of the Costs Applicant’s investigation into another employee’s complaint against him and its decision to issue him with a written warning.

[54] The Costs Respondent then made a claim of defamation against the employee who had complained about him in a court without jurisdiction to deal with his claim, before sending a grievance to the Chief Executive Officer of the Costs Applicant that provided no detail and made irrelevant claims such as that the title of legislation referred to in a policy was incorrect.

[55] Finally, the Costs Respondent then made the section 739 application to the Commission that also contained either erroneous or irrelevant information.

[56] Specifically in his application the Costs Respondent stated that the Costs Applicant’s Code of Conduct, EEO and grievance policies were written agreements containing a dispute procedure allowing for a dispute to be referred to the Commission when this was, the Costs Applicant submits, not the case and that the flexible working arrangements contained in the NES was the standard relating to the Costs Respondent’s dispute when it was very clearly irrelevant.

[57] Whilst it is accepted that the Costs Respondent is not a lawyer or a person who works in the field of industrial relations, the Costs Applicant submits it would not have been hard for him or his to ascertain that the Commission was not able to deal with his dispute.

[58] All it would take would be to obtain a copy of the Act or search it online, or alternatively read the dispute resolution clause in the Agreement which clearly states that it only covers disputes arising under the Agreement or relating to the NES.

[59] The Costs Applicant submits that prior to making any applications to the Commission, there is some obligation on the part of an applicant to ascertain, even on a basic level, whether or not the Commission that the applicant is applying to is actually able to hear the application.

[60] Either the Costs Respondent did not do any research or seek advice on whether his dispute could be heard or he ignored that advice or research.

[61] In fact, the Costs Respondent was advised by his representative, Mr Bristow, that he should not have made this application but take some other course of action. The Costs Respondent made the application anyway.

[62] The Costs Respondent knew, or should have known, that the only avenue available to him to refer a matter to the Commission was through clause 18 of the Agreement. No other document, even if the Costs Respondent is excused from knowing what a written agreement or other instrument was, contains a procedure allowing the Commission to deal with a dispute.

[63] The Costs Applicant submits clause 18 is clear on what it covers. None of the grounds which the Costs Respondent relies on in his application, have any relevance to clause 18. Furthermore, even if there was any reference to a matter covered by clause 18, the clause is very specific that the only way the Commission could arbitrate the dispute is if the Costs Applicant agreed. The Costs Applicant had previously made it clear to the Costs Respondent that it was its position that the matter was closed.

[64] Therefore, the Costs Applicant submits that even on the Costs Respondent’s own version of events, his arguments were so obviously untenable or manifestly groundless as to be utterly hopeless and that his application must fail.

[65] Whilst it is accepted that in relation to section 611(2)(a) of the Act, the Commission when determining whether the application was made vexatiously or without reasonable cause, must only consider the Costs Respondent’s state of mind at the point the application was made, evidence of his behaviour prior to making the application that supports one way or the other the claim for costs should be considered.

[66] In this case, the Costs Respondent had a prior history of making a claim without considering or just ignoring whether or not the court being applied to can hear the claim, when he pursued the employee whom had made the complaint about him in the Magistrates Court.

Reasonably apparent that the application had no reasonable prospects for success

[67] In relation to section 611(2)(b) of the Act, that the Commission should consider the Cost Respondent’s behaviour after he had made his application. As stated by Jones C in the case referred to above:

“It is clear from the express term of s.611(2)(a) which speak of a person who ‘made the application’ that the reference point for deciding whether s.611(2)(a) is satisfied is the point at which the application is made.

In my opinion s.611(2)(b) is not so constrained. Whilst the subsection refers to a person who ‘should have been’, this use of past tense is a reference to the steps in the proceeding up until the matter is determined or discontinued. 13 The words of s.611(2)(b) do not limit the test to the making of the application. The subsection includes in the conduct to be examined a ‘response to the application’. Clearly, s.611(2)(b) cannot be limited to the time at which the application is made but applies in the course of proceedings until the time at which the matter is determined by FWA or discontinued.”

[68] The Costs Applicant contends that it should have been reasonably apparent to the Costs Respondent that his application had no reasonable prospects for success.

[69] Furthermore, the Costs Applicant on receipt of the application, instructed Mr Farrell to write to the Costs Respondent and his representative to make it clear that his application would not be successful.

[70] The letter also clearly stated that if the Costs Respondent didn’t discontinue his application, the Costs Applicant would be seeking its costs on an indemnity basis.

[71] The Costs Respondent, despite receiving the letter, did not even acknowledge the letter nor did he provide any response. In addition, the Costs Respondent was not even prepared, despite having prior knowledge of the jurisdictional objection to argue against it at the conference before the Commission.

[72] After the conference, the Costs Respondent was directed by the Commission to either discontinue the application or make submissions countering the Costs Applicant’s jurisdictional objection.

[73] This time, the Costs Respondent did acknowledge receiving the Commission’s email but neither made submissions countering the jurisdictional objection nor discontinued the application.

[74] The Costs Respondent’s failure to do anything after having been informed by both the Costs Applicant and the Commission of the arguments supporting the jurisdictional objection is an indication that the Costs Respondent that it was reasonably apparent to him that his application had no prospects of success.

[75] For all of the above reasons, the Costs Applicant seeks an order that the Costs Respondent bears all of the Costs Applicant’s costs on an indemnity basis.

Submissions of the Costs Respondent

[76] On behalf of the Costs Respondent it was originally submitted that the Cost Applicant had not complied with the requirements regarding service and so the costs application must be dismissed however this objection was subsequently withdrawn. There was no substance to this objection and for completeness I am satisfied that the Costs Respondent was served with the costs application and all other materials.

[77] On behalf of the Costs Respondent it was submitted that the purpose of application C2018/5018 was Mr Weikl contends that he was not provided with a fair go when it came to investigating and reviewing a complaint against him.

[78] Mr Weikl claims that this did not show fair process and Mr Weikl was advised by the organisation he had no right to make a complaint under the Perth Racing Code of Conduct as he was a casual and was not able to have the right of appeal or response to a matter which adversely affected him and contends to date are untrue and unsubstantiated.

[79] The complaint including that Ms Homden stated the following comments about Mr Weikl “it is my opinion that you are ‘racist’”.

[80] Mr Weikl made a complaint under the code of conduct, as he felt the conduct of Ms Homden was not appropriate as this labelled him a racist which he is not.

[81] The Costs Applicant denied Mr Weikl the right to make a complaint under the code of conduct as he was casual.

[82] It is possible for a reasonable person like Mr Weikl had he been provided with all relevant information and documentation relating to his employment at induction, this would have communicated with him his rights, expectations, legal responsibility and obligations, Mr Weikl may have not commenced with a relationship with the Turf Club.

[83] Mr Weikl made the application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. The Turf Club was negligent in their general duty of care under section 19 of the Occupation Safety and Health Act 1984 and section 19 of the Health and Safety Act 2011 by not providing Mr Weikl with an induction.

[84] Therefore it is submitted Mr Weikl did not make the application, vexatiously or without reasonable cause.

[85] On 18 September 2018 a document had been sent to Mr Weikl’s and his representative’s email. The document was not without prejudice.

[86] This document referred to Calderbank v Calderbank 6 as the principle for the application of costs.

[87] This case considered the issue of offers for legal settlements and whether or not a person was liable for the costs of the defendant even though he won the case in court.

[88] In litigation if the winning party refuses an earlier settlement offer made by the losing party, the losing party may produce the settlement offer as evidence towards the appropriate level of costs payable. In practice, if the winning party’s award of damages is less than the earlier settlement offer, then the losing party may have to pay fewer costs to the winning party than normal.

[89] It is Mr Weikl’s response that Calderbank v Calderbank is not applicable as there was no settlement offer without prejudice.

[90] It is stated that this letter would be the basis for the Turf Club’s application for costs.

[91] Mr Weikl states that the above points support and should satisfy the Commission that it was not reasonably apparent to the first person that Mr Weikl’s application had no reasonable prospect of success.

[92] On 25 September 2018 the Commission instructed that the Turf Club’s concerns would be dealt with at the conciliation conference on 26 September 2018.

[93] Mr Weikl and his representative Mr Bristow attended the conciliation on 26 September 2018 and the key points were discussed at this conciliation, at the Commission’s directions the Costs Respondent had 14 days to either advise if he wished to discontinue the application.

[94] At the conciliation conference the Costs Applicant even made an application to have Mr Weikl’s representative not able to assist, this request was declined therefore shows evidence that the Costs Applicant did not want the Costs Respondent to have a fair go.

[95] Mr Weikl’s contends that the Turf Club has made the application for costs vexatiously and in addition this would be in support of his bullying claim by the Turf Club.

[96] Mr Weikl felt that he had a legitimate dispute and contends that he has been repeatedly bullied by the Turf Club prior to making the section 739 application which has supporting evidence by witness, process and documentation.

[97] In reference to item numbers 1 through to 5 for itemised costs Mr Weikl states that the Costs Applicant made no reasonable steps to mitigate costs.

[98] Mr Weikl’s above statements in response, it is submitted, support and should satisfy the Commission that it was not reasonably apparent to the first person that Mr Weikl’s application had no reasonable prospect of success.

[99] It is Mr Weikl’s contention that the Turf Club has acted repeatability negligent at their own omission.

[100] Mr Weikl requests that the application for costs be dismissed.

[101] Mr Weikl submits that most of the affidavits of both Mr Farrell and Ms Homden have no relevance in accordance with section 611 of the Act. (sic.)

The legislation

[102] This application for an order that Mr Weikl pay the costs of the Turf Club was made under section 611 of the Act, which is set out below.

“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).”

[103] The original application Mr Weikl made was one under section 739 of the Act, which is set out below.

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

Consideration

[104] The principles relevant to determining an application made under section 611 have been summarised by a Full Bench of the Commission in the decision of Keep v Performance Automobiles Pty Ltd 7 as follows:

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgement, that is, ‘so obviously untenable that it cannot possibly succeed’.

[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.170 CJ(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”.” (References omitted)

[105] Section 611(2)(a) of the Act requires the Commission to consider whether it is satisfied that the applicant in this matter made the application either vexatiously or without reasonable cause.

[106] In my view there is nothing before the Commission that would satisfy me that the Costs Respondent in this case made the originating application vexatiously. The fact that the Costs Respondent had previously unsuccessfully pursued his dispute with the Costs Applicant and with another employee of the Turf Club by itself does not mean that his application was made vexatiously.

[107] As to whether the Costs Respondent made his application without reasonable cause it is first necessary to consider the type of application the Costs Respondent chose to make then consider the nature of the dispute.

[108] The original application was made under section 739 of the Act. Section 739(1) provides the section applies if a term referred to in section 739 requires or allows the Commission to deal with that dispute. Section 739(3) of the Act provides that in dealing with a dispute the Commission must not exercise any powers limited by that term. In addition section 739(5) of the Act provides the Commission must not make a decision that is inconsistent with the Act or with a fair work instrument that applies to the parties. In this case the Agreement was such a fair work instrument.

[109] Clause 18(a) of the Agreement is as follows,

“(a) The provisions in clause 18 will apply to any dispute between an employee covered by this Agreement and Perth Racing about any matter arising under this Agreement or in relation to the National Employment Standards (dispute).”

[110] This clause does not apply to all disputes between an employee and the Turf Club.

[111] Rather it prescribes which disputes the dispute settlement procedure applies to. Expressly the dispute settlement procedure will apply to any dispute “about any matter arising under this Agreement or in relation to the National Employment Standards...”

[112] Consequently if a dispute is not about a matter arising under the Agreement or in relation to the NES the dispute settlement procedure does not apply to that particular dispute. If the dispute settlement procedure does not apply to a particular dispute the Commission is not empowered under section 739 of the Act to deal with it.

[113] The Costs Respondent on his original application in response to question 1.3 listed section 18.1 of the Agreement as the clause of the industrial instrument containing the relevant dispute settlement procedure. At no point at the Conference or at any time afterwards, did the Costs Respondent argue that the dispute resolution procedure which applied was included in any of the other instruments or other written agreements he listed in answer to question 1.2 on his application. No other dispute resolution procedure was supplied by the Costs Respondent.

[114] When the Costs Respondent made the application he also completed section 2.1 describing what the dispute was about which in summary was as follows,

1. A complaint about the Mr Weikl was made to management on 21 April 2018.

2. The complaint was discussed with Mr Weikl on 25 May 2018 with support person Mr Bristow.

3. On 25 June 2018 Mr Weikl and Mr Bristow met with the Turf Club’s staff and Mr Weikl was advised he was guilty of breach.

4. No information was provided to Mr Weikl and about how the decision was made and the process of investigation was not fair and reasonable.

5. Mr Weikl lodged formal grievance on two occasions (23 August 2018 and 6 September 2018) and has been denied the right to have matter reviewed.

6. Mr Weikl has no right to dispute any breaches of code of conduct or company policy.

[115] Considering what the Costs Respondent stated on his application the dispute was about, which was confirmed in the Costs Respondent’s submissions, it is clear that none of those issues in dispute arose under the Agreement nor were any of those issues in dispute in relation to the NES prescribed in the Act.

[116] The Costs Respondent when he made the application knew what the dispute was about and what clause 18 of the Agreement prescribed. Upon those facts known to him there was no reasonable prospects that the Commission had jurisdiction to conduct a conciliation conference in relation to the dispute. 8 The issues in dispute were outside the scope of clause 18 of the Agreement and the Costs Respondent could not possibly have succeeded with an argument that the Commission had jurisdiction to deal with the dispute. The Costs Respondent has never relied on a dispute resolution procedure in any other industrial instrument or other written agreement as a basis for jurisdiction.

[117] In the context of the original application being an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure under section 739 of the Act I am satisfied that the original application was made without reasonable cause.

[118] Turning next to section 611(2)(b) of the Act which requires the Commission to consider whether it is satisfied that it should have been reasonably apparent to the Costs Respondent that his application had no reasonable prospect of success.

[119] As the Full Bench authority has explained “should have been reasonably apparent” involves an objective test as opposed to the Costs Respondent’s subjective belief.

[120] On the facts known at the time the Costs Respondent made the original application, considered objectively, there simply was no arguable case that the Commission would have jurisdiction to conduct a conference in relation to the issues in dispute.

[121] Consequently I am satisfied that in this case it should have been reasonably apparent to the Costs Respondent that his application had no reasonable prospect of success.

[122] It is my view in this case that it is appropriate that the Commission exercise its discretion to order the Cost Respondent to bear some of the costs of the Costs Applicant in relation to the original application made under section 739 of the Act.

[123] The Costs Applicant seeks an order from the Commission that the Costs Respondent bears all of the Costs Applicant’s costs on an indemnity basis. 9

[124] An ordinary costs order refers to party/party costs, which are those costs which naturally follow from the issue of and defence of proceedings.

[125] An indemnity costs order involves the payment of the total of both party/party and solicitor/client costs.

[126] The High Court in Oshlack v Richmond River Council 10stated,

“Indemnity Costs are all costs including fees, charges, disbursements, expenses and remuneration incurred by a party provided they have not been unreasonably incurred or are not of an unreasonable amount. They involve a larger proportion of the legal costs than that of party-party costs, which only involve legal costs that are deemed necessary and reasonable. Indemnity costs may be ordered when there has been an element of misconduct or delinquency on the part of the party being ordered to pay costs.”

[127] Davies J stated in TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 3) 11:

“It is well-settled law that indemnity costs should not be ordered unless there is some special or unusual feature [emphasis added] of the case that justifies departure from the ordinary practice… The cases illustrate the appropriateness of awarding costs on an indemnity basis where there has been particular misconduct that caused a loss of time to the Court and to other parties, 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, or where the proceeding was unduly prolonged by groundless contentions.”

[128] A “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 12. 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; 13

•  where there is evidence of misconduct that causes a loss of time to the court and to the other parties; 14

•  where proceedings were commenced for some ulterior motive; 15

•  where proceedings were commenced or continued in wilful disregard of known facts or clearly established law; 16

•  where allegations were made which ought never to have been made; 17

•  where the proceeding was unduly prolonged by groundless contentions; 18

•  where there was an imprudent refusal of an offer to compromise. 19

[129] In this instance the facts and circumstances of the case do not in my view support making an order for payment of costs other than on a party/party basis.

[130] An order for costs on a party/party basis will be made.

[131] In order to finalise the making of such a costs order the Costs Applicant is directed to provide a revised and appropriately detailed itemised schedule of costs detailing the party/party costs. This is to be filed in the Commission and served on the Costs Respondent within 7 days of the date of this decision and the Costs Respondent is invited to file any submissions on the quantum of costs in reply with the Commission and serve these on the Costs Applicant within 14 days of the date of this decision.

COMMISSIONER

Final written submissions:

Costs Applicant, 28 October 2018 and 16 November 2018.

Costs Respondent, 15 November 2018 and 11 December 2018.

Printed by authority of the Commonwealth Government Printer

<PR704427>

 1   [2018] FWC 5013.

 2   (1976) FAM 93.

 3   [2018] FWC 5013.

 4   [2012] FWA 7165.

 5 [1992] FCA 366.

 6   (1976) FAM 93.

 7   [2015] FWCFB 1956.

 8   [2013] FWC 7945 at [17].

 9   See the Costs Applicant’s submissions at paragraph 36.

 10 (1998) 193 CLR 72 [44].

 11 [2016] FCA 828.

 12 [1993] FCA 536.

 13   Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.

 14   Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187.

 15   Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR.

 16   Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.

 17   Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR.

 18   Ibid.

 19   Messiter v Hutchinson (1987) 10 NSWLR 525 and Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721.