Dr Shaodi You v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2020] FWC 2679

[2020] FWC 2679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Shaodi You
v
Commonwealth Scientific and Industrial Research Organisation T/A CSIRO
(U2019/13254)

DEPUTY PRESIDENT KOVACIC CANBERRA, 22 MAY 2020

Application by the Respondent seeking an order for security for costs – application dismissed. Reasons for decision to grant permission for the Respondent to be legally represented.

[1] This decision deals with an application made on 4 May 2020 by the Commonwealth Scientific and Industrial Research Organisation T/A CSIRO (CSIRO) under s.404 of the Fair Work Act 2009 (the Act) and Rule 55 of the Fair Work Commission Rules 2013 (the Rules) seeking an order that Dr Shaodi You provide security for costs. CSIRO’s application specified the amount sought as security for costs as $57,250. Directions regarding CSIRO’s application were issued on 6 May 2020, with the application list for a telephone hearing on 15 May 2020. By way of background, Dr You was dismissed by CSIRO on 6 November 2019 for misconduct and filed his unfair dismissal application 27 November 2019 with the Fair Work Commission (the Commission).

[2] The decision also sets out my reasons for granting CSIRO permission to be represented by a lawyer in the proceedings concerning Dr You’s unfair dismissal application at the telephone hearing on 15 May 2020. By way of background, on 22 April 2020 the legal representative for CSIRO advised the Commission that CSIRO sought permission to be legally represented in the proceedings concerning Dr You’s unfair dismissal application. CSIRO had previously sought and been granted permission to be legally represented in the telephone mention and/or directions hearing held on 29 January 2020 regarding Dr You’s application. Directions regarding CSIRO’s request for permission to be represented were issued on 23 April 2020 with the matter also heard on 15 May 2020.

[3] At the telephone hearing, Dr You appeared on his own behalf, while Mr John Tracey of Counsel appeared with permission for CSIRO.

[4] For the reasons outlined below, I have decided not to exercise the discretion available to the Commission to make the order for security for costs sought by CSIRO. Accordingly, CSIRO’s application is dismissed.

[5] I deal first with the issue of CSIRO’s application for an order for security for costs and then set out my reasons for deciding to grant CSIRO permission to be legally represented in the proceedings regarding Dr You’s unfair dismissal application.

Security for costs

The Statutory framework

[6] The relevant provisions of the Act and Rules, i.e. s.404 of the Act and Rule 55 of the Rules, are set out below:

“404 Security for costs

The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.

55 Order for security for payment of unfair dismissal matter costs

(1) A respondent or applicant in a matter before the Commission arising under Part 3-2 of the Act (unfair dismissal) may apply to the Commission for an order that a person provide security for the payment of costs in respect of the matter or part of the matter.

Note 1: The application must be in the approved form—see subrule 8(2).

Note 2: The Commission will not ordinarily make such an order before the conclusion of conciliation.

(2) The person to whom an order made under subrule (1) applies must pay the amount of security at the time, and in the manner and form, required by the order.

(3) If the Commission orders that security for the payment of costs be given in respect of a matter or part of a matter arising under Part 3-2 of the Act, a respondent or applicant in the matter may apply to the Commission to:

(a) reduce or increase the amount of security to be provided; or

(b) vary the time at which, or manner or form in which, the security is to be provided.

(4) Without limiting any other power which the Commission may exercise, if the Commission directs a person to provide security for costs in relation to a matter or part of a matter arising under Part 3-2 of the Act, the Commission may order that the matter be:

(a) adjourned until security is provided; or

(b) adjourned indefinitely.”

[7] In its submissions, CSIRO also referred to s.611(2)(b) of the Act which deals with costs and provides as follows:

“611 Costs

(1) …

(2) However, the FWC may order a person (the first person) to bear some or all ofthe 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.”

CSIRO’s case

[8] In its submissions CSIRO contended that there were two compelling reasons which supported the Commission granting its application for security of costs. First, it was highly likely that it would succeed in defending Dr You’s unfair dismissal application and that there was a very real prospect that the Commission would make an order that he pay CSIRO’s costs. Second, as Dr You was currently residing in the Netherlands, there was a high degree of risk that it would have no practical ability to enforce a costs order against Dr You. CSIRO drew on the principles which govern the exercise of the Commission’s power to order security for costs as set out in Ms Sharon Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group (Harris) 1.

[9] With regard to the first of the above reasons, CSIRO highlighted that the evidence demonstrated that Dr You had been employed or engaged by the University of Amsterdam since at least 10 October 2019, inferring that also since then he would have been paid a salary commensurate with salary he received at CSIRO and as such had suffered no financial loss. CSIRO submitted that there were strong prospects that at the hearing regarding Dr You’s unfair dismissal application his employment with the University of Amsterdam while still employed by CSIRO, his failure to disclose that employment to CSIRO or to obtain CSIRO’s permission consistent with the relevant CSIRO procedures would constitute a valid reason for his dismissal. CSIRO further submitted that this, together with the many other reasons for Dr You’s dismissal, supported a conclusion that the dismissal was not unfair and that as such CSIRO had strong prospects of successfully defending the matter. CSIRO added that, even if it was found that Dr You had been unfairly dismissed, Dr You’s prospects of obtaining a remedy were objectively extremely remote or very weak. In summary, CSIRO characterised the proceedings as “hopeless and bound to fail and/or lacking in apparent merit.” 2

[10] As to the second of the above reasons, CSIRO submitted that were it to successfully defend Dr You’s unfair dismissal application it was also highly likely that it would obtain an order for its costs. CSIRO posited that the tests regarding s.611(2)(b) of the Act as set out in Baker v Salva Resources Pty Ltd (Salva) 3 were met at the time it filed its security for costs application. CSIRO further stated that an order for security for costs would ensure that it was protected in defending an unmeritorious case.

[11] Finally, CSIRO submitted that those factors which may tend against an order for security for costs were not of substantial weight in this case.

[12] In its oral submissions, CSIRO highlighted several aspects of its written submissions. Among other things, CSIRO submitted that, despite the Commission’s Order of 4 March 2020 Requiring Production of Documents etc. to the Commission and a further such order on 6 May 2020 (made in similar terms), Dr You continued to fail to be frank with both it and the Commission regarding his employment with the University of Amsterdam. CSIRO also noted that Dr You in his response to its 4 May 2020 application for an order for production of documents, records or information to the Commission stated inter alia that the documents sought were out of the geographical application of the Act, adding that this heightened its concerns that it would be unable to enforce a costs order against Dr You.

[13] In support of its application for security for costs CSIRO filed an affidavit by Mr Rory Jolley of MinterEllison and a witness statement by Ms Lisa Maree Van Schieveen, CSIRO’s Workplace Relations Manager. Ms Van Schieveen’s statement had previously been filed in support of CSIRO’s submissions regarding Dr You’s unfair dismissal application.

[14] Mr Jolley in his affidavit stated that to date CSIRO had incurred legal costs of around $44,500 and that he anticipated it may incur a further $70,000 in the proceedings. Mr Jolley further stated that, based on a ‘rule of thumb’ that an order for costs on a party to party basis usually amounted to between 50-60% of a party’s actual costs, he estimated that if CSIRO obtained an order for costs it would be between $57,250 and $68,700. Mr Jolley in his affidavit also highlighted inter alia that Dr You had not confirmed his starting date with the University of Amsterdam despite an Order Requiring Production of Documents etc to the Commission issued by the Commission on 4 March 2020 which required him to produce the following by 4:00pm on 11 March 2020:

“All documents in the possession, custody or control of Dr Shaodi You pertaining to the commencement date of his employment with the University of Amsterdam, including but not limited to:

a. any application by Dr You for employment with the University of Amsterdam;

b. the University of Amsterdam's offer of employment to Dr You;

c. Dr You's contract of employment with the University of Amsterdam;

d. any other document stating the commencement date of Dr You's employment with the University of Amsterdam; and

e. any correspondence between Dr You and the University of Amsterdam in relation to the above.”

[15] In her witness statement Ms Van Schieveen dealt with a number of issues relevant to Dr You’s unfair dismissal application and his employment with the University of Amsterdam. Annexed to Ms Van Schieveen’s statement was a copy of an advertisement by the University of Amsterdam for a PhD candidate in computer vision using deep learning dated 10 October 2019 which stated that the research would be “under the supervision of Assistant professor Dr Shaodi You within the Computer Vision group of the Informatics Institute” and also named Dr You as the contact person regarding any questions about the vacancy. 4 Ms Van Schieveen also stated that CSIRO wrote to the University of Amsterdam in December 2019 seeking confirmation that Dr You had commenced employment with it but that the University responded that it could not provide any details without Dr You’s approval. Also attached to Ms Van Schieveen’s statement was correspondence from the Tokyo Institute of Technology to CSIRO’s Chief Executive Officer dated 23 January 2020 requesting a reference about Dr You. Among other things the correspondence stated that Dr You “told us he moved to the University of Amsterdam last September but we are suspicious about the reason of his resignation.”5

Dr You’s case

[16] Dr You responded to CSIRO’s application for security for costs on 5 May 2020 (i.e. in advance of the previously mentioned directions issued by the Commission on 6 May 2020). Among other things, Dr You contended in his response that:

•  there was no basis on which costs needed to be secured, adding that he was an Australian permanent resident whose address in the ACT was active and valid and that he had never defaulted on a payment in his life;

•  CSIRO may have committed fraud because the cost claimed by it had not been permitted by the Commission;

•  CSIRO was asserting that it had won before filing its submissions or any evidence regarding his unfair dismissal application, disputing that his application had “no reasonable prospects of success” and describing the assertion as baseless; and

•  CSIRO may have attempted to technically adjourn the hearing of his unfair dismissal application.

[17] In his further written submissions, Dr You contended that having regard to CSIRO’s submissions regarding his unfair dismissal application there was no valid reason for his dismissal and that CSIRO may have committed many Commonwealth and State offences. Under the heading “[t]he Respondent has no reasonable prospect of winning”, Dr You disputed each of the six reasons for his dismissal cited in CSIRO’s submissions regarding his unfair dismissal application. Dr You also listed what he considered to be the various Commonwealth and State offences which he alleged the Respondent had committed.

[18] Among other things, Dr You in his oral submissions submitted that he commenced employment with the University of Amsterdam in early February 2020, confirmed that he currently resided in Amsterdam and contended that the costs claimed by CSIRO were unreasonable.

Consideration of the issues

[19] As noted above, the decision in Harris set out the principles relevant to the making of an order for security for costs. The relevant parts of the decision are set out below:

“Principles relevant to the discretion to make an order for security of costs

[7] Principles relevant to the making of orders for security of costs can be summarised as follows. There is no absolute rule to control the exercise of the discretion to order security for costs, and what should be done in each case depends on the circumstances of the case with the governing consideration being what is required by the justice of the matter. The making of an order for security for costs should not be oppressive in that it would stifle a reasonably arguable claim.

[8] The financial position of the party against whom the order is sought, will be relevant in a number of circumstances. There is no absolute rule that impecuniosity of a party will entitle its opponent to an order for security for costs. There is also a general rule that poverty should not be a bar to a person prosecuting a claim at first instance. On appeal, the question of security is to be determined differently on the basis that the appellant has had his or her day in court, and should not be given a “free hit”, particularly in circumstances where the costs of a proceeding below had not been paid by the appellant.

[9] In cases where the impecuniosity of the party against whom the order for security for costs is sought, it is relevant that the impecuniosity is itself a matter which the litigation may help to cure or arises from the conduct the party is complaining of. In such circumstances the party against whom the order is sought should not be shut out of litigation.

[10] The prospects of success and the strength of the case of the party resisting the order is relevant. In Merribee (Supra)Kirby J said (citations omitted):

“Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party’s case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security of costs. Furthermore, if a party asserts that its opponent’s proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation.”

[11] In relation to costs, it is relevant that the nature of a proceeding is such that, even if successful, an order for costs might not be made or might be limited. The inability of a party to meet the costs of an unsuccessful proceeding, or the risk that a cost order will not be satisfied is also relevant to the exercise of the discretion. Other related considerations are that a party is, or is likely to be absent from the jurisdiction when a decision is made and has no, or few assets within the jurisdiction.

[12] There may also be aspects of public interest which are relevant to the exercise of the discretion to make an order for security for costs, such as an application raising matters of general public importance, quite apart from the interests of the parties. Other matters that have been considered relevant are that a hearing of the proceedings is close at hand, or the party seeking the order has delayed its application for such an order. It may also be relevant that the parties, or some of them, are legally aided.

Unfair dismissal proceedings under the Fair Work Act 2009

[13] It is relevant in determining whether an order for security of costs should be made, to consider the circumstances in which the party who seeks the order may recover its costs in the substantive proceedings to which the security relates. This approach was taken in Polaris Sales Australia v Pettigrew where Whelan C noted that before determining an application for an order for security of costs it was necessary to consider the nature of proceedings to which the order related, in the then Australian Industrial Relations Commission (AIRC) and its power to award costs. Whelan C observed that the AIRC had no inherent power to award costs, and that the circumstances in which costs could be awarded were limited. Further, it was noted that costs do not follow the cause, and a party who successfully prosecutes or defends a claim cannot assume that an application for costs will also be successful.” 6 (Endnotes not included)

[20] I adopt the above principles.

[21] CSIRO in its submissions contended that were it to successfully defend Dr You’s unfair dismissal application it was also highly likely that it would obtain an order for costs, positing that the tests regarding s.611(2)(b) of the Act as set out in Salva were met at the time it filed its security for costs application. The Full Bench in Salva stated as follows in respect s.611(2)(b) of the Act:

“[10] 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.” (Endnotes not included)

[22] In this case the Commission has the benefit of the parties’ outline of submissions and evidentiary material having been filed. What is clear from that material is that Dr You disputes that there was a valid reason for his dismissal and in doing so also disputes that the alleged conduct which gave rise to his dismissal occurred or, if it did occur, that he had a valid and appropriate reason for his conduct. I further note that while Dr You has provided a witness statement in support of his unfair dismissal application, he has not provided any other witness statements in support of his application. On the other hand, CSIRO has filed seven witness statements in support of its submissions.

[23] As to the issue of when Dr You his commenced employment with the University of Amsterdam, Dr You in a revised statement he provided to the Commission on 13 May 2020 in response to the Commission’s Order Requiring Production of Documents etc. to the Commission of 6 May 2020 stated inter alia that he arrived in the Netherlands from the United States on 28 January 2020, attended his first staff meeting at the University of Amsterdam on 3 February 2020 and on or around 6 February commenced work on screening and recruiting his first PhD students in the University. Despite the terms of the Commission’s Orders Requiring Production of Documents etc. to the Commission of 4 March and 6 May 2020 and the Commission’s suggestion that Dr You approach the University of Amsterdam to obtain the relevant documents, Dr You has provided no probative material to corroborate his claim that he commenced employment with the University in early February 2020. Having said that, the previously mentioned material annexed to Ms Van Schieveen’s witness statement is not of itself determinative of the issue, though it clearly contradicts Dr You’s statement regarding when his employment with the University commenced. The issue will clearly need to be determined by the Commission.

[24] In this case Dr You was dismissed for misconduct. As such, the Commission in determining Dr You’s unfair dismissal application must be satisfied that the conduct occurred and justified termination.⁷ “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 8 This arguably mitigates against the making of an order for security for costs.

[25] An examination of the materials filed by the parties in respect of Dr You’s unfair dismissal application indicates that while Dr You’s case may not appear particularly strong on paper, it is in my view at least arguable. As such, drawing on the language in Salva, I am not satisfied that it is “manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”

[26] Beyond that, and with regard to the principles set out in Harris, I note that:

•  there is limited material before the Commission regarding Dr You’s financial position and/or impecuniosity; and

•  there are no matters of public interest in this case which are relevant to the exercise of the discretion to make an order for security for costs.

[27] As previously mentioned, Dr You advised the Commission at the hearing on 15 May 2020 that he now resides in the Netherlands. While I acknowledge the potential practical implications of this in terms of CSIRO seeking to enforce a costs order against Dr You should such an order ultimately be sought by CSIRO and subsequently made by the Commission, that of itself is not sufficient to warrant making the order for security for costs sought by CSIRO.

Conclusion

[28] For all the above reasons, I decline to exercise the discretion available to the Commission to make the order for security for costs sought by CSIRO. Accordingly, CSIRO’s application is dismissed. An Order to that effect will be issued in conjunction with this decision.

Permission for CSIRO to be represented by a lawyer – Reasons for Decision

The Statutory framework

[29] Section 596 of the Act deal with the issue of representation by lawyers and paid agents and provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(a) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”

CSIRO’s submissions

[30] CSIRO submitted that permission for it to be legally represented in this matter should be granted because it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, and because it would be unfair not to grant permission because in the context of this case it was not able to represent itself effectively. In short, CSIRO’s submissions were premised on ss.596(2)(a) and (b) of the Act.

[31] More particularly, CSIRO submitted among other things that:

•  the complexity in this matter arose from the fact that it would be necessary to cross-examine Dr You in relation to matters of contested fact and which go to credit;

•  complexity also arose from the voluminous number of documents in evidence and the need to navigate and refer to and use those documents in an efficient way;

•  having regard to these considerations, legal representation would lead to efficiencies in how the proceedings are conducted;

•  it did not employ persons who had experience in appearing before the Commission as an advocate in contested hearings, particularly proceedings involving contested fact, multiple witnesses and the need to undertake cross-examination of those witnesses;

•  while it had employees who had represented it in other proceedings or processes in the Commission such as conferences and conciliations, the skills required for such appearances before the Commission were very different to those required for a contested hearing such as in this case;

•  it was therefore not able to represent itself effectively in these proceedings and it would be unfair for it not to have the legal representation it has had to date;

•  it had not conducted the proceedings on the basis that one of its employees would be acting as its representative and advocate; and

•  as the grounds in ss.596(2)(a) and (b) had been made out, the Commission should exercise its discretion in favour of granting it permission to be represented.

Dr You’s submissions

[32] Dr You opposed CSIRO’s request for a number of reasons including that:

•  he would be disadvantaged were permission to be granted for CSIRO to be legally represented because among other things he was self-represented and not a native English speaker;

•  CSIRO was a large employer which employed a number of legally qualified persons and over 100 human resource professionals;

•  CSIRO had the capacity to represent itself; and

•  there was no merit on effectiveness.

[33] In his written submissions Dr You also disputed the grounds relied by CSIRO in support of its request for permission to be represented. Attached to Dr You’s written submissions were several documents, including LinkedIn profiles for a number of CSIRO’s legally and human resources/workplace relations staff.

[34] At the hearing on 15 May 2020 Dr You contended that there was nothing complex about his unfair dismissal application and reiterated the unfairness to him of permission being granted to CSIRO to be represented by lawyer. Dr You also stated that CSIRO employed between 60 and 100 in-house lawyers and pointed to the precedent which may be established were CSIRO to be granted permission in this case. Dr You also contended that fairness considerations should override any efficiency considerations in this case.

Consideration of the issues

[35] Justice Flick considered the application of s.596 of the Act in Warrell v Walton (Warrell) 9 as follows:

“24 A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...” The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

25 The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 …” 10

[36] To date in this case:

•  Dr You has filed four applications for orders for the production of documents, records or information to the Commission;

•  Dr You wrote to the Commission on 6 May 2020 seeking an inadvertent waiver of the without prejudice privilege;

•  Dr You on 13 May 2020 filed two applications for security for costs (one in respect of CSIRO and the other in respect of MinterEllison), both applications are yet to be programmed;

•  CSIRO has filed two applications for orders for the production of documents, records or information to the Commission;

•  CSIRO also filed the application for security for costs dealt with above; and

•  CSIRO has filed seven witness statements in support of its submissions, with all witnesses likely to be cross-examined by Dr You.

[37] As previously noted, the Commission has the benefit of the parties having filed their respective outlines of submissions and evidentiary material in this case. What is clear from that material is that many if not most of the factual issues in this case are disputed. In addition, Dr You’s credit as a witness is, as foreshadowed above in CSIRO’s submissions, likely to be a key issue in substantive proceedings concerning his unfair dismissal application. These issues are likely to result in extensive cross examination both of and by Dr You.

[38] I note also that Dr You in his submissions regarding CSIRO’s application for security for costs contended among other things that CSIRO had committed offences under various Commonwealth and state laws, including the Information Privacy Act 2014(ACT), the Health Records (Privacy and Access) Act 1997 (ACT), the Telecommunications Act 1997 (Cth) and the Surveillance Devices Act 1998 (WA). A fair reading of those submissions suggests that these issues are likely to be traversed in his cross examination of some of CSIRO’s witnesses.

[39] In Mr Ganesh Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul (Changan) 11 Commissioner Spencer had regard to the requirements of s.596(2)(a) of the Act. Specifically, Commissioner determined to grant permission in that case for reasons which included those set out below:

“[8] Permission was granted on the basis that the matter involved some complexity and that representation of the Respondent would enable the matter to be dealt with more efficiently. In particular it was taken into account that the credit of the Applicant was likely to be in dispute in the matter and that a consideration of the Respondent’s policies, employment contracts and safety issues would form central evidentiary issues in relation to the matter.” 12

[40] The Commissioner’s decision was cited by the Full Bench in Daniel King and others v Patrick Projects Pty Ltd (King) 13 which stated as follows:

“[50] ... [t]his is to be contrasted with that which will be before Her Honour in the substantive proceedings, where the factual material will be vigorously contested, summonses to give evidence have been foreshadowed to current and former employees of the respondent and on Mr Strauss’ own submission, the proceedings are likely to run for many days. Complexity arising from contested evidence or witness credit has been held by the Commission to be grounds for granting permission to be represented by a lawyer; See: Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul [2014… [ sic [ ] FWC 2790.” 14 (Underlining added)

[41] Having regard to the decisions in Changan and King and the factors identified at paragraphs [36]-[38] above, I am satisfied that this matter involves a degree of complexity such that representation would enable the matter to be dealt with more efficiently. The efficiency will in my view relate primarily to the evidentiary aspects of the case. For all these reasons, I am satisfied that the requirement in s.596(2)(a) of the Act is met in this case.

[42] With regard s.596(2)(b) of the Act, while I note Dr You’s contention that CSIRO employs between 60 and 100 in-house lawyers, the LinkedIn profiles attached to his submissions indicate that the lawyers concerned have expertise in the following areas – commercial, contractual, intellectual property, work health and safety/rehabilitation and/or workers’ compensation matters. Significantly, none of the profiles provided by Dr You identified workplace relations expertise and/or experience in prosecuting contested matters before the Commission. Similarly, the LinkedIn profiles attached to Dr You’s submissions of some of CSIRO’s human resource/workplace relations employees did not identify or point to any experience in appearing in the Commission in contested matters such as this one. In those circumstances, having regard to the complexities described above, I am satisfied that CSIRO is unable to represent itself effectively in this matter in the absence of legal representation.

[43] In circumstances where I am satisfied that the requirement in s.596(2)(a) and (b) of the Act are met, I turn now to consider whether it is appropriate to exercise the discretion available to the Commission to grant CSIRO permission to be represented in this matter. To that end, I note firstly that CSIRO has been legally represented in the proceedings to date. As such, drawing on the language in Warrell, I consider it unlikely that granting permission for CSIRO to be represented would fundamentally change the dynamics and manner in which the hearing of Dr You’s unfair dismissal application proceeds.

[44] Further, I do not consider that granting permission for CSIRO to be represented in this case will result in any unfairness to Dr You. Matters before the Commission frequently involve one party being legally represented while another party is self-represented, meaning that the Commission is experienced in ensuring as far as is reasonable that the self-represented party is not disadvantaged and has every opportunity to put forward their case. Further, acknowledging that English is not Dr You’s first language, the Commission can (subject to a request from Dr You) arrange for a translator to be available to assist the parties and the Commission in this matter. Also relevant in this regard is my conclusion above that granting permission is unlikely to fundamentally change the dynamics and manner in which this matter proceeds.

[45] Finally, in my view significant weight should be attached to the prospect that this matter will be dealt with more efficiently were permission to be granted, particularly when regard is had to the potential for the proceedings to be highly contested, the extensive witness evidence in this matter and the prospect that witness credit will be a significant issue in the proceedings.

[46] It is for these reasons that I decided to exercise the discretion available to the Commission under s.596 of the Act and grant CSIRO permission to be represented by a lawyer in these proceedings.

Next steps

[47] Dr You’s unfair dismissal application is listed for a telephone hearing over five days commencing on 25 May 2020.

Appearances:

S. You on his own behalf.
J. Tracey of Counsel for the Respondent.

Telephone hearings:

2020
Canberra, Melbourne and Amsterdam
May 15.

Printed by authority of the Commonwealth Government Printer

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 1   [2011] FWA 2910

 2   CSIRO’s Outline of Submissions in Support of Application for Security for Costs at paragraph 19

 3 (2011) 211 IR 374

 4   Witness Statement of Lisa Maree Van Schieveen dated 6 May 2020 at Annexure ‘LVS-15’

 5   Ibid at Annexure ‘LVS-20’

 6   [2011] FWA 2910 at [7]-[13]

7 Edwards v Justice Giudice [1999] FCA 1836, [7].

 8   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 9 (2013) 233 IR 335

 10   Ibid at 24 and 25

 11   [2014] FWC 2790

 12   Ibid at [8]

 13   [2016] FWCFB 5069

 14   Ibid at [50]