Elizabeth Camilleri v Claims Link Pty Ltd T/A Easi Drive Pty Ltd

[2018] FWC 1286

[2018] FWC 1286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Camilleri
v
Claims Link Pty Ltd T/A Easi Drive Pty Ltd
(U2017/12231)

COMMISSIONER BISSETT MELBOURNE, 9 MARCH 2018

Unfair dismissal – application for costs – application refused.

[1] On 16 November 2017 Ms Elizabeth Camilleri made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). On 18 January 2018 I issued a decision 1 and order2 dismissing her application as it was not accompanied by the required fee as prescribed by the FW Act and hence was not made in accordance with the FW Act.

[2] On 5 February 2018 Claims Link Pty Ltd T/A Easi Drive Pty Ltd (Claims Link) made an application for costs pursuant to s.611 of the FW Act on the grounds that it briefed a lawyer to defend Claims Link when Ms Camilleri made her application and that the lawyer perused “various documents in the matter and provided advice from the date the notification of [the] application was received until the decision of the FWC was received on 18 January 2018.” 3

[3] On 7 February 2017 I wrote to Ms Camilleri seeking submissions from her as to the application for costs. No submissions were received from her.

[4] On 1 March 2018 I wrote to Claims Link advising that Ms Camilleri had made no submissions and seeking any submissions it wished to make. This correspondence was copied to Ms Camilleri.. Ms Camilleri replied to this correspondence indicating that she was unable to make any submissions (presumably in relation to the Commission’s correspondence indicating her application might be dismissed given her failure to pay the prescribed fee and the request on 7 February 2018 for submissions in relation to the costs application) because Claims Link did not pay her “last weeks (sic) wages” or “reimbursement of fuel”. Further, she questioned why Claims Link would have incurred any costs as she never proceeded with her claim. Ms Camilleri indicated that she would not, in any event, pay any costs.

[5] Claims Link advised on 5 March 2018 that it did not wish to make any further submissions and was content for the Fair Work Commission (Commission) to determine the matter on the basis of its application.

[6] Claims Link seeks an order that Ms Camilleri pay a total of $358.00 in costs incurred by it.

Legislative provisions

[7] Section 611 of the FW Act states:

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 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.

(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).

[8] Claims Link do not identify if its application for costs is made pursuant to s.611(2)(a) or s.611(2)(b) of the FW Act. I have therefore considered each of the grounds in s.611(2) of the FW Act.

(a) Application made vexatiously or without reasonable cause

[9] Whether a proceeding has been instituted vexatiously is to be decided by reference to the comments of Justice North in Nilsen v Loyal Orange Trust. 4 Whilst that matter was decided under the Workplace Relations Act 1996 the relevant provision was in the same terms as found in s.611(2)(a). His Honour said:

The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.

[10] There is nothing in either Ms Camilleri’s s.394 application or the costs application of Claims Link that would enable me to conclude that the application was made vexatiously although I do note an oblique reference in the application to an on-going dispute Ms Camilleri’s father may have with Claims Link. That, however, does not allow me to infer that her application was made vexatiously.

[11] An assessment as to whether an application is said to have been made without reasonable cause is an “alternative ground” as to whether it was made vexatiously. 5

[12] An application might be found to have been made without reasonable cause if it is:

•  so obviously untenable that it cannot possibly succeed;

•  manifestly groundless;

•  so manifestly faulty that it does not admit of argument;

•  discloses a case which the Court is satisfied cannot succeed;

•  under no possibility can there be a good cause of action;

•  be manifest that to allow them (the pleadings) to stand would involve useless expense. 6

[13] In Kanan v Australian Postal and Telecommunications Union 7 Wilcox J said:

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.

[14] Ms Camilleri did make her application outside the 21 day period required by s.394 of the FW Act but set out reasons for doing so. The determination of whether an extension of time might be granted for the making of an application is a discretionary decision. A late application does not make the application or the extension of time groundless or without argument or untenable.

[15] Ms Camilleri said she was given no notice of the dismissal and was told late in the day not to attend the next day. The remedy she sought, whilst not in accordance with the remedy available, does not make the application untenable. It is my experience that applicants will often seek as remedy the payment of notice or wages they consider due to them. A lack of knowledge of the basis of compensation available should a dismissal be found to be unfair cannot make the application itself untenable or groundless.

[16] Ms Camilleri completed an application for relief from unfair dismissal. That application set out grounds on which she believed she had been unfairly dismissed. Whilst Ms Camilleri’s application and reasons were not extensive they were clear and concise. There is nothing in the application to suggest that it was “obviously untenable” or “manifestly groundless” that it could not succeed. Brevity should never be confused for such things. I accept that this assessment of the application is made only with the benefit of Ms Camilleri’s application and no reply application of the Claims Link but at the point in time of making her application and on the basis of the content of that application there is no reason to assume it was made without reasonable cause.

(b) It should have been reasonably apparent the application had no reasonable prospect of success

[17] The basis for determining if it should have been reasonably apparent that an application had no reasonable prospects for success was considered in Baker v Salva Resources Pty Ltd 8 where the Full Bench of the Commission said:

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 omitted]

[18] It might be said that, without the payment of the fee required to be paid when making an application it should have been apparent. objectively considered, that the application had no reasonable prospect of success.

[19] Despite the failure to pay the appropriate fee required by the FW Act, there is nothing in Ms Camilleri’s unfair dismissal application itself that, objectively considered, suggests that the application was manifestly groundless.

Conclusion

[20] For the reasons given above I am not satisfied that an application for the award of costs has been made out by Claims Link.

[21] Even if a claim was made out I would not, in this case, have exercised my discretion to grant costs.

[22] Ms Camilleri made her application on 16 November 2017. As she had not paid the filing fee she was issued with a letter on 20 November 2017 that said, in part:

If you do not pay the application fee or make an application to have the fee waived within 14 days of the date of this letter, your application may be dismissed.

[bolding in original]

[23] On the same day a letter was sent to Claims Link. It said, in part:

The Fair Work Commission (the Commission) has received an application for unfair dismissal remedy from Ms Elizabeth Camilleri in relation to [her] employment with Claims Link Pty Ltd T/A Easi Drive Pty Ltd.

The Commission is currently awaiting further information from the applicant in relation to this application. This application cannot be progressed at this time. [emphasis added]

If the necessary information is not provided, the application may be dismissed. If the Commission dismisses the application a copy of the decision and order will be sent to you.

If the application is able to be progressed you will receive a letter from the Commission explaining the next stage in the processing of the application, attaching forms for you to complete.

Please note that the Commission has made no assessment of the merits, or otherwise, of the application and you are not required to do anything at this stage. [bolding in original, underlining added]

[24] The next advice that Claim Link received from the Commission was a copy of the decision and order dismissing the application on 18 January 2018. It appears Claim Link sought some legal advice (and hence incurred costs) on 23 November 2017, presumably after it received the letter from the Commission dated 20 November 2017 in which it was advised that no action was required of it. Claim Link then apparently sought further legal advice on 24 November 2017 and again on 18 January 2018 following the decision of the Commission that dismissed Ms Camilleri’s application for unfair dismissal remedy. On none of those occasions was it required to take any action.

[25] Had it been unclear if any further action was required on its part, Claim Link only needed to contact the Commission as the letter addressed to it on 20 November 2017 suggested. However, it sought legal advice on the basis of the courtesy letter from the Commission that clearly said it was not required to do anything.

[26] Given the clarity of the communication from the Commission I would not exercise the discretion available to me to make an order for costs. Any costs Claims Link chose to incur ought to be borne by it.

[27] The application for costs is dismissed.

COMMISSIONER

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 1   [2018] FWC 335.

 2   PR599591.

 3   Form F6 – Application for Costs.

 4 (1997) 76 IR 180 cited in Holland v Nude Pty Ltd (t/as Nude Delicafe) (2012) 224 IR 16 [7].

 5   Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[2014] FWCFB 810 [29].

 6   General Steel Industries Inc. v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125.

 7 (1992) 43 IR 257.

 8   [2011] FWAFB 4014.