Go To Court Franchising Pty Ltd T/A Go To Court Lawyers v Lewis
[2018] FWCFB 630
•1 FEBRUARY 2018
| [2018] FWCFB 630 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 604 - Appeal of decisions
Go To Court Franchising Pty Ltd T/A Go To Court Lawyers
v
Paul Lewis
(C2017/6250)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 1 FEBRUARY 2018 |
Application for costs by respondent to appeal – appeal not vexatious – appeal not without reasonable prospects of success – section 611(2) not enlivened – application dismissed
[1] This decision concerns an application by Mr Paul Lewis for costs against an unsuccessful employer appellant in an unfair dismissal claim, Go To Court Franchising Pty Ltd trading as Go To Court Lawyers (GTC).
[2] Mr Lewis, the costs applicant, is a solicitor formerly employed by GTC.
[3] GTC dismissed Mr Lewis on 9 March 2017. Mr Lewis took action under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy. On 31 October 2017 Commissioner Hunt found the dismissal to be harsh, unjust and unreasonable. 1 She ordered that GTC pay Mr Lewis compensation of $15,068.08 (less tax) plus superannuation. GTC appealed and sought a stay of the order.
[4] On 20 November 2017 Deputy President Anderson stayed the order, on conditions, pending determination of the appeal. 2 On 6 December 2017 this Full Bench refused permission to appeal and set aside the stay order.3
[5] On 20 December 2017 Mr Lewis applied for orders for costs under sections 400A, 401 and 611 of the FW Act in relation to the proceedings before Commissioner Hunt and in respect of the appeal including the stay proceedings.
[6] After having the decision of the Commission in Cremona v Lane 4 drawn to his attention, Mr Lewis withdrew his application for costs relating to proceedings before Commissioner Hunt but proceeded with his application insofar as it relates to the appeal (and stay) proceedings.5
[7] Mr Lewis seeks indemnity costs in the sum of $4,772.60.
[8] On 22 December 2017 Directions were issued by Deputy President Gooley concerning the management of the costs application. Written submissions were filed by Mr Lewis and by the costs respondent GTC. The parties agreed that the costs application be determined on the papers and without further hearing. We now do so.
[9] This decision is based on the submissions filed by the parties and the costs application. We have also had regard to the material that was before us on the appeal and in the stay proceedings.
[10] We note that the costs applicant’s submissions place primary reliance on section 611 of the FW Act. Section 611provides as follows:
“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)”
[11] Relevantly, section 402 of the FW Act provides as follows:
“402 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 400A or 401, must be made within 14 days after:
(a) the FWC determines the matter; or
(b) the matter is discontinued.”
[12] This costs application, insofar as it is pressed regarding the appeal, is within time. It was lodged within 14 days of the decision to refuse permission to appeal. We note that more than 14 days have elapsed between the date of the stay order and the lodgement of the costs application. We do not consider this an impediment to including the costs of the stay proceedings in our consideration. We regard the decision to stay the order and to then set aside the stay order in disposing of the appeal to be integral components of the one proceeding, that is, the appeal. The statutory scheme would be unworkable if a costs application needed to be made for the costs of stay proceedings before the outcome of an appeal was known.
[13] Accordingly, we consider it open in dealing with this application to consider whether costs should be awarded with respect to both the stay proceeding before Deputy President Anderson and the subsequent appeal proceeding before this full bench.
[14] The principles governing the operation of section 611 of the FW Act are well established, and we have regard to the authorities that have formulated and applied them. 6 We also have had regard to the statutory scheme, including the starting proposition expressed in section 611(1) and described in the explanatory memorandum to the FW Act as a “general rule” that a person must bear the person’s own costs in relation to a matter before the FWC.7
[15] Section 611(2) operates as an exception to this general rule. As a Full Bench of the Commission said in A Baker v Salva Resources Pty Ltd: 8
“[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.”
[16] Mr Lewis submits that GTC made its appeal solely because it did not like the outcome decided by Commissioner Hunt and wanted the mater re-heard. On the authority of Cremona v Lane, he submits that it should have been reasonably apparent to GTC that its appeal had no reasonable prospect of success. He submits that this is a more pronounced case than Cremorne v Lane given that GTC is itself a firm of lawyers and “advertises itself proficient in the practice area of employment law”. 9 He also submits that the appeal is vexatious.
[17] We do not agree. These submissions misconceive our appeal decision and the stay decision.
[18] In granting the stay, Deputy President Anderson said as follows:
“The appeal is not frivolous though an appeal which concerns matters of evidence must, under the FW Act, identify a significant error of fact. The appellant’s contention that the Commissioner considered aspects of the evidence in isolation from each other and failed to do so cumulatively may be a basis for an arguable case on appeal with some reasonable prospects of success but only if the appellant can establish that this is in fact what occurred...” 10
[19] In our appeal decision we concluded that the Commissioner had adopted an orthodox approach when applying the facts to the law in respect to each of the appeal grounds. We did however agree with one criticism of the Commissioner’s decision advanced by the appellant concerning unnecessary speculation over what the evidence of a witness not called might have been, though we did not find it to constitute appealable error. 11
[20] More generally, we do not consider that the grounds of appeal masked a desire for a rehearing. The grounds asserted errors of law and errors in the application of the facts of the type frequently contended by appellants. That permission to appeal was not granted does not, of itself, mean that section 611(2) is enlivened.
[21] Nor do we regard the appeal to have been vexatious. GTC clearly held a genuine belief in the validity of the decision it made to dismiss Mr Lewis and a belief that the facts which led it to dismiss and those which it identified after dismissal were not given sufficient weight by the Commissioner. While this full bench found no error in the Commissioner’s decision we noted that GTC did correctly point to the fact that the Commissioner made “a number of findings when considering individual matters that were critical of the competence and capacity of the Respondent.” 12 This observation supports a finding that GTC’s defence of its position before the Commissioner and on appeal was genuinely based and not adopted vexatiously.
[22] In all of the circumstances we do not consider the appeal proceeding, including the stay, to have been vexatious, taken without reasonable cause or to have been reasonably apparent that it had no reasonable prospects of success. The general principle set out in section 611(1) that a person must bear the person’s own costs in proceedings before the Commission is not displaced.
[23] Nor are we satisfied that orders should be made under sections 400A or section 401 of the FW Act. Mr Lewis has elected to not proceed with respect to orders that could be made under sections 400A or 401 regarding proceedings before Commissioner Hunt due to the effluxion of time. To the extent that orders against lawyers under section 401 are sought and could be made with regard to the appeal proceedings, we note that GTC was a self-represented legal firm on appeal as permission had been refused for external legal representation. 13 We consider that section 401 applies to costs against legal representatives acting in their capacity as representatives not in their capacity as party principal. In any event, for reasons outlined above, we do not consider that GTC or the in-house lawyer who appeared for the firm on appeal acted unreasonably within the meaning of section 401.
[24] The application for costs is dismissed. We publish an Order 14 to this effect.
DEPUTY PRESIDENT
Final written submissions:
Costs Applicant (Paul Lewis), 8 January 2018
Costs Respondent (Go to Court Lawyers), 25 January 2018
<PR599950>
1 [2017] FWC 4023
2 [2017] FWC 6114
3 [2017] FWCFB 6330
4 [2011] 213 IR 151
5 Correspondence Total Legal to Fair Work Commission 5 January 2018
6 For example, Cremona v Lane[2017] FWC 4023; Rigby v BMS Retail Group Pty Ltd[2016] FWC 6846 and A Baker v Salva Resources Pty Ltd[2011] FWAFB 4014
7 Explanatory Memorandum to Fair Work Bill 2008 paragraph 2354
8 [2011] FWAFB 4014 at [10]
9 Submissions 8 January 2018 paragraph 11
10 [2017] FWC 6114 at [19]
11 [2017] FWCFB 6330 at [45]
12 Ibid [25]
13 [2017] FWCFB 6330 at [7]
14 PR599951
Printed by authority of the Commonwealth Government Printer
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