Elizabeth Cogger v New Horizons Enterprises Limited

[2022] FWC 2320

[2022] FWC 2320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Cogger
v

New Horizons Enterprises Limited

(U2021/10778)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 1 SEPTEMBER 2022

Application for costs – application dismissed

Introduction

1. On 5 April 2022, I heard Ms Elizabeth Cogger’s application for unfair dismissal against New Horizons Enterprises Ltd (New Horizons). On 24 May 2022, I decided that Ms Cogger was not unfairly dismissed by New Horizons.[1]

1. On 7 June 2022, New Horizons filed an application for costs against Ms Cogger.

1. Both parties consented to my determination of the costs application on the papers.

1. In determining the costs application I have had regard to New Horizons submissions dated 16 June 2022 and 29 June 2022, together with Ms Cogger’s submissions dated 23 June 2022.

Basis for costs application

1. New Horizons seeks payment of its legal costs pursuant to section 400A and section 611 of the Fair Work Act2009 (Cth) (Act). New Horizons has sought leave to file further submissions in relation to the quantum of such costs, subject to my determination of its costs application.

1. New Horizons’ primary contentions in support of its costs application are as follows:

• In summary, Ms Cogger’s real contention was that, despite public health orders requiring her to be vaccinated against COVID-19 to perform her employment duties, those public health orders were illegal and unenforceable, and so she was not bound to comply with their requirements. By requiring her to comply with purportedly unenforceable public health orders to maintain her employment, Ms Cogger’s subsequent dismissal was unfair.

• The Commission was bound to follow the Kassam[2] decisions of the Supreme Court and Court of Appeal and was bound to find that the NSW government public health orders are neither invalid nor unenforceable. Objectively, it should have been reasonably apparent to Ms Cogger that the positions advanced in her unfair dismissal application regarding the legality of the public health orders had been resolved in the Kassam decisions, applied in subsequent decisions of the Commission, and so were doomed to fail.

• During the directions hearing on 3 February 2022, the Deputy President put Ms Cogger on notice that the arguments she had raised had been heard and determined. Ms Cogger was provided copies of those decisions that resolved her arguments in respect of the legality of the state government public health orders.

• In being aware of those decisions, Ms Cogger either had to provide other reasons why her dismissal was unfair or, if no other reason could be advanced, withdraw her unfair dismissal application. Ms Cogger did neither and instead continued to prosecute her case.

1. New Horizons submits that Ms Cogger knew, or objectively ought to have known, that her unfair dismissal application had no reasonable prospects of success. Moreover, in continuing to prosecute the application after becoming aware of this fact, New Horizons incurred costs in defending the matter.

1. Ms Cogger has provided a response to the submissions of New Horizons. Her primary contentions in opposition to the application for costs are as follows:

• The supremacy of the Commonwealth over all states and territories is established under s 109 of the Commonwealth of Australia Constitution Act 1977 (Cth) (the Constitution).  As such, where there is inconsistency between a law of a state and a law of the Commonwealth, the latter will prevail.

• The High Court has established three approaches to determine inconsistency between state and Commonwealth legislation. These are:

1.   Is it impossible to obey both laws? (the “simultaneous obedience” test);

2.   Does one law confer a right which the other purports to take away? (the “conferred rights” test); and

3.   Does the federal law cover the field in question? (the “cover the field” test).

• The jurisdiction of the Fair Work Commission is established by a Commonwealth act and it must therefore be bound by the Constitution and must enforce the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth). Moreover, the President of the Fair Work Commission has the same status as a judge of the Federal Court per s 629A and under s 608 the President of the Fair Work Commission may refer questions of law to the Federal Court.

• There appears to be a clear-cut prima facie case for jurisdictional misfeasance, nonfeasance and malfeasance as practiced by the President of the Fair Work Commission, Justice Ross, and other members of the Commission. Ms Cogger sets out five reasons in support of this contention:

1. The consistent misrepresentation of the jurisdiction of the Fair Work Commission by its refusal to recognise the supremacy of the current Commonwealth Constitution over all state and territory laws.

2.   The practice of estoppel by silence of the nationally appointed Judiciary of the Fair Work Commission by presenting biased correspondence of case determinations eluding to the vexatious argument that Ms Cogger has no chance of winning her case in reference to the Vaccination Related Matters page of the Fair Work Commission website.

3.   The malfeasance with regard to Deputy President Dean who expressed her views against vaccine mandates and was subsequently banned from hearing vaccine related cases and excluded from the full bench.

4.   The present evidence with respect to the Fair Work Commission’s acquiescence to Jetstar and its CEO’s requests that the Fair Work Commission rule in favour to the Respondent so as to cause the Respondent costs through liability.

5.   The news media (5-year tax exemption).

• New Horizons is a National Systems Employer and therefore it entered into a federal employment contract agreement with Ms Cogger. Thus, the only legally enforceable statutes applicable to all parties are the Fair Work Act and the Corporations Act as Commonwealth statutes.

• Regarding civil conscription, the precedent for the Constitution s51(xxiiiA) was set and justified with the case of Wong v Commonwealth of Australia (2009).

• The Deputy President granted the New Horizons permission to be legally represented in the matter, this was opposed by the Ms Cogger. New Horizons was granted permission to be legally represented as “there is some complexity in this matter, particularly in relation to the arguments concerning constructive dismissal and the applicant’s arguments concerning the requirement to be vaccinated against COVID-19.”

• New Horizons’ legal representative required an extension to file their material and did not cross examine Ms Cogger at the hearing.

• Ms Cogger presented new information and legal terms, as well as evidence that had never been presented in previous known cases, and therefore required new rulings which have been ignored in the Fair Work decision

• ATAGI have very clearly stated that there are no approved COVID-19 vaccines in Australia and any claimed COVID-19 vaccines are provisionally approved for clinical trials.

• To date the Ms Cogger is still left without any knowledge of the laws the Fair Work Commission, Deputy President Saunders or New Horizons relied upon to make their claims, mandates and rulings contra to the prima facie ATAGI evidence.

Relevant legal principles

1. Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are a number of provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Sections 400A and 611(2) of the Act are two such exceptions.

1. Section 400A of the Act provides as follows:

“Costs orders against parties

(1) The Fair Work Commission may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the Fair Work Commission is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The Fair Work Commission may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the Fair Work Commission's power to order costs under section 611.”

1. Section 400A(1) of the Act establishes two preconditions for the making of an order for costs:

(a) First, the Commission must be satisfied that the party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and

(b) Secondly, such act or omission caused the other party to the matter to incur costs.

1. If these two preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.

1. Section 611(2) of the Act provides as follows:

“(2) However, the Fair Work Commission 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 Fair Work Commission if:

(a) the Fair Work Commission 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 Fair Work Commission 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.”

1. The relevant principles concerning the interpretation and application of s 611(2)(a) were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[3] and may be summarised as follows:

• An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.

• An application is not made without reasonable cause simply because the application did not succeed.

• Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether 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 characterise the application as having been made without reasonable cause.

• In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there was not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.

• An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, is manifestly groundless, or discloses a case where the tribunal is satisfied it cannot succeed.

1. In relation to s 611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd[4] as follows (footnotes omitted):

“[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.”

Consideration

1. Ms Cogger’s arguments at the hearing of her unfair dismissal case focused primarily on the legality of public health orders which applied to her in connection with her employment with New Horizons. In light of the decisions of the New South Wales Supreme Court and Court of Appeal in Kassam,[5] together with the fact that the Commission does not have jurisdiction to determine whether a public health order is invalid or unlawful,[6] Ms Cogger’s arguments concerning the legality of the public health orders which applied to her were untenable. They had no reasonable prospects of success. Ms Cogger continues to raise such arguments in response to the application by New Horizons for costs. Those arguments have as little merit now as they did when articulated in support of Ms Cogger’s claim for unfair dismissal.

1. At the first directions hearing on 3 February 2022, I drew to Ms Cogger’s attention the decisions of the New South Wales Supreme Court and Court of Appeal in Kassam.[7] Copies of those decisions were sent to Ms Cogger on the afternoon of the first directions hearing.

1. For these reasons I accept New Horizons’ arguments that Ms Cogger filed her unfair dismissal application without reasonable cause, it should have been reasonably apparent to Ms Cogger that her unfair dismissal application had no reasonable prospects of success, and Ms Cogger engaged in an unreasonable act or omission by continuing to prosecute her case in circumstances where she was provided with the decisions of the New South Wales Supreme Court and Court of Appeal in Kassam.[8] Notwithstanding these matters, I have decided to exercise my discretion not to award costs in favour of New Horizons, for the following reasons.

1. I am aware from the present case and other unfair dismissal cases I have heard where New Horizons has been a respondent that New Horizons is a large organisation with experienced human resources managers. In my assessment, it has the experience and capacity to represent itself effectively in most unfair dismissal matters. It is, of course, a matter for New Horizons to decide whether or not to engage (and pay for) external lawyers to assist and/or represent the organisation in unfair dismissal cases. In this case, New Horizons engaged external lawyers, who were granted permission to appear and who represented New Horizons professionally and effectively. Permission was granted pursuant to s 596(2)(a) of the Act, primarily because of complexity associated with New Horizons’ constructive dismissal arguments. However, given the circumstances of this case, including the fact that there was no dispute that the public health orders applied to Ms Cogger and Ms Cogger was not legally represented (she only had the ‘assistance’ of a lay friend), it was not necessary or reasonably necessary, in my assessment, for New Horizons to be legally represented. I consider that New Horizons would have represented itself effectively and successfully in this case had it chosen to do so. The solicitors for New Horizons addressed the many arguments raised on behalf of Ms Cogger in relation to the legality and validity of the public health orders. But that was not necessary, for the Commission does not have jurisdiction to determine whether such orders are valid or enforceable.[9] Apart from those matters, the facts of this case were quite straightforward.

Conclusion

1. For the reasons given, I have decided not to exercise my discretion to award costs in favour of New Horizons against Ms Cogger.

1. Accordingly, New Horizons’ costs application pursuant to s 400A and/or s 611 of the Act is dismissed.

DEPUTY PRESIDENT

[1] Cogger v New Horizons [2022] FWC 1267 (Merits Decision)

[2] [2021] NSWSC 1320; [2021] NSWCA 299.

[3] [2014] FWAFB 810 at [23]-[33]

[4] [2011] FWAFB 4014; (2011) IR 174

[5] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

[6] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [68]

[7] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

[8] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

[9] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [68]

Printed by authority of the Commonwealth Government Printer

<PR745383>