Fr Andrea Bellia v Assisi Centre Inc
[2010] FWA 7706
•4 OCTOBER 2010
[2010] FWA 7706 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fr Andrea Bellia
v
Assisi Centre Inc
(U2010/5284)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 4 OCTOBER 2010 |
Application for costs - employer argued that a priest of the Melkite Church was not an employee - employer objection dismissed - was the employer case arguable - was an appeal lodged - ‘justice’ defeated by procedure?
[1] On 14 January 2010 Father Andrea Bellia lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’). Conciliation on 8 February 2010 was unsuccessful.
[2] The Assisi Centre Inc (‘Assisi’), the employer, filed a jurisdictional objection which was heard on 26 March 2010. On 1 June 2010 1 I dismissed the jurisdictional objection.
[3] On 3 June 2010 Father Bellia lodged a costs application under s.611 of the Act. An earlier costs application was withdrawn.
[4] The costs application came on for hearing on 23 June 2010, after an exchange of written submissions. On 22 June 2010 a Notice of Appeal against my decision of 1 June was sent to an email address at Fair Work Australia. As a result the hearing on 23 June was adjourned by consent into a conciliation conference. Conciliation occurred but no agreement was reached.
[5] The matter was relisted and the hearing of the costs application took place on 20 September 2010. On the same day the purported appeal was withdrawn.
[6] Mr Mark Rinaldi of counsel represented the Assisi Centre Inc, and Ms Frances O’Brien SC of counsel represented Father Bellia.
[7] Father Bellia seeks costs for the following:
- the jurisdictional objection lodged by Assisi;
- the ‘appeal’ lodged by Assisi;
- for the costs proceedings.
[8] Assisi is counter-claiming for costs in relation to the application for costs made by Father Bellia.
Costs for the Jurisdictional Objection
[9] Firstly, in relation to the costs application regarding the jurisdictional objection lodged by Assisi, Father Bellia submitted that the indicators of an employment relationship that lead me to dismiss the jurisdictional objection were known to Assisi and therefore Assisi ought to have known that the jurisdictional objection would not succeed, and on Assisi’s own version of the facts the jurisdictional objection had no reasonable prospects of success within s.611.
[10] In response, Assisi submits that the employment status of a priest is by its nature an arguable matter, and as such the jurisdictional matter did have a reasonable prospect of success.
The Costs Application Regarding the ‘Appeal’
[11] Secondly, Father Bellia seeks costs for the appeal recorded in Exhibit A1. Assisi submits that because the appeal was discontinued before any proceedings began that no costs are recoverable, because there were no appeal proceedings.
[12] Was there actually an appeal under s.604? An email to Fair Work Australia in which Assisi purported to lodge an appeal was tendered 2 during the proceedings on 20 September and was dated 22 June 2010, the day before the matter was listed for costs hearing. Rule 20 of the Fair Work Australia Rules 2009 provides that an appeal document may be lodged by emailing the document to certain approved Fair Work Australia email addresses. The appeal notice was not sent to one of the approved Fair Work Australia email addresses. No application to the tribunal for relief from the rules was made. It does not therefore appear to be the case that an appeal was initiated. On 20 September 2010 the ‘appeal’ was withdrawn3.
[13] The appeal document was however a step in the earlier matter, namely the jurisdictional matter, and arose out of the jurisdictional application. Either way, whether an appeal was instituted or not, the abortive steps taken to purportedly initiate and appeal, or successfully to initiate an appeal, those steps are subject to a costs order in my view. If this is not correct the absurd situation would arise that the applicant could make applications or take steps which are vexatious or which clearly must fail, cause the other side to incur substantial costs, and no remedy is available. That is not an interpretation that is consistent with the ordinary meaning of s.611, or the objects of the Act or of the various parts of the Act.
Costs for the Costs Application
[14] Thirdly, Assisi submits that costs in relation to a costs application are recoverable as a costs application meets the requirements of s.611.
Decision
[15] Section 611 of the Act provides:
“(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person ) to bear some or all of the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.
...”
[16] As this is a matter under s.394, s.402, applies:
“Applications for costs orders
An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:
(a) FWA determines the matter; or
(b) the matter is discontinued.”
[17] First of all Assisi made a jurisdictional application to have the unfair dismissal application made by Father Bellia dismissed. Father Bellia is seeking costs with respect to that application under s.611.
[18] Secondly, Ms.O’Brien submitted 4 that there was no reasonable basis for the jurisdictional objection. She said that at best the applicant had three elements or facts in support of their application which purported to show that Father Bellia did not have an employment relationship with Assisi, because he was not under their direction and control but under the direction and control of Archbishop Darwish if anyone:
- a direction by Archbishop Darwish of the Melkite Church that Father Bellia go to Adelaide;
- Father Bellia’s attendance at a Melkite retreat;
- negotiations between Archbishop Darwish and Assisi that led to the engagement of Father Bellia by Assisi.
[19] Mr.Rinaldi submitted that these sorts of issues were almost always arguable, and referred to various legal authorities to support that submission. He said that it simply cannot be the case that the jurisdictional objection was ‘completely inarguable’ 5.
[20] Each of the three incidents referred to by Ms.O’Brien raised the issue of exactly what sort of control and direction was exercised or exerciseable by Archbishop Darwish of the Melkite Church, and what sort by Assisi. There was room for some argument on the law and facts in relation to each, and the resolution of those arguments required findings of fact by me in the face of conflicting and somewhat uncertain evidence.
[21] For example, the evidence of all witnesses were not clear on exactly whether or not Father Bellia had under his arrangement with Assisi to seek annual leave or permission before departing for Adelaide. Father Bellia did ask whether or not he should take annual leave 6, but this can be construed as showing some uncertainty about it, and about his status, as did Assisi in its response. In relation to the Melkite retreat similar questions arose.
[22] In relation to the negotiations over the terms of engagement of Father Bellia, Archbishop Darwish conducted the negotiations with Assisi. On 7 March 2007 he wrote to Assisi stating that he, Darwish, was ‘very happy to accept your proposal’. Similar references to his personal role were made by Assisi on other occasions as being the other side in the possible contract or arrangement.
[23] If a contract was entered into, was it entered into by Archbishop Darwish or by Father Bellia? I accepted Father Bellia’s evidence 7 that Darwish acted as an agent on behalf of Father Bellia, having heard and seen Father Bellia’s evidence, and all the evidence. Based on that finding I further found that the discussions led to an employment contract. That finding does not mean that the case was inarguable. Careful consideration had to be given to the respective roles of Darwish and Father Bellia.
[24] In reaching the conclusion that I did, I also had to ascertain exactly the nature of directions given to Father Bellia by Assisi, what he did by way of work, what payment, tax and similar arrangements there were, and other matters. It is unlikely that either party was fully aware of the nature of the evidence about the engagement of Father Bellia until a considerable amount of work had been done by them, and by me, in bringing the evidence together, and then assessing each individual aspect of the evidence, and then assessing the overall totality of the evidence. The submissions of the parties, and witness statements, were not always a model of clarity, which in the circumstances was to some degree understandable.
[25] Ms.O’Brien submitted that Mr.Rinaldi did not correctly state the legal tests. She submitted that it is not a test of whether the jurisdictional argument was ‘entirely inarguable’, ‘wholly inarguable’, it is whether it is inarguable. She also submitted that Father Bellia had put Assisi on notice that they would be seeking costs. I accept her characterisation of the legal tests. I also do not agree with any suggestion that no jurisdictional objection of this kind will be inarguable. Clearly there will be many that are inarguable.
Conclusion
[26] Wilcox J in Kanan v. Australian Postal and Telecommunications Union said 8:
‘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 reasonable cause.’
[27] These observations are directly relevant to the case before me. After the High Court decision in Erminogenous 9the approach to determining whether or not Father Bellia was an employee of Assisi was that the ordinary tests should be applied, without a presumption that Father Bellia was not an employee. However, that case and the case before me illustrate the difficulties that can arise in determining whether or not a relationship is of an employment nature or something else in matters of this kind.
[28] I am not satisfied that the tests in s.611 are met. It may be that Assisi has acted with less than the desirable standard of good judgement, but for the reasons given its case was not inarguable. I dismiss the applications for costs.
[29] The matter will now be referred to arbitration.
[30] This matter has a most unfortunate procedural history. This history includes a jurisdictional application which was unsuccessful, a purported appeal which was not made in accordance with the requirements of the rules, and which delayed a costs hearing for three months, no relief from the rules was sought for the appeal, and then the appeal document was withdrawn, and no less than three costs applications, two by Father Bellia and one by Assisi.
[31] Because of this unfortunate procedural history the substantive matter of whether or not Father Bellia’s termination was harsh, unjust or unreasonable has not yet been addressed, some nine months after the dismissal on 5 January 2010. It would be highly desirable for the parties to settle the matter between themselves rather than to further pursue every legal remedy available, in order to ensure that the provision of ‘justice’ is not entirely overtaken by procedure 10. Again a conciliator can be made available on request. Successful conciliation will require a substantial change in the unfortunate attitudes exhibited by the parties.
DEPUTY PRESIDENT
Appearances:
Mr Mark Rinaldi of Counsel for the Assisi Centre Inc
Ms Frances O’Brien SC of Counsel for Father Andrea Bellia
Hearing details:
Melbourne
2010
20 September
1 [2010] FWA 2904 PR995990
2 Exhibit A1, Exhibit B1
3 Exhibit B4
4 PN707-747
5 PN898-920
6 Exhibit A4, paragraph 11
7 At paragraph 17
8 (1992) 43 IR 257 at 264
9 (2002) 209 CLR 95
10 Hamilton v. Oades (1988) 166 CLR 486 at 502, per Deane and Gaudron JJ
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