Gregory Culpan v The Star Pty Ltd
[2012] FWA 6882
•14 AUGUST 2012
[2012] FWA 6882 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory Culpan
v
The Star Pty Ltd
(U2012/6620)
COMMISSIONER BISSETT | MELBOURNE, 14 AUGUST 2012 |
Application for unfair dismissal remedy - application for costs.
[1] On 11 July 2012 Fair Work Australia (FWA) issued orders at the request of the Respondent in the unfair dismissal proceedings to produce documents addressed to various people and organisations. Included were orders to produce addressed to the Australian Broadcasting Corporation (ABC) and Seven Network Operations and Seven Network Operations Limited (Channel 7).
[2] An application was also made by the Respondent (The Star) for an order addressed to the Applicant in the unfair dismissal matter (Mr Culpan). That order was not issued by FWA and was set down for mention for 26 July 2012. Objections by the ABC and Channel 7 were heard at the same time.
[3] Mr Dawson of counsel appeared at the hearing separately for the ABC and for Channel 7, Mr Seck of counsel appeared for the Respondent to the unfair dismissal matter and Mr Shariff of counsel appeared for the Applicant.
[4] At the conclusion of dealing with the content of the orders Mr Dawson made an application for costs on behalf of each of his clients against the Respondent in relation to the orders. This decision deals with that costs application only. A separate decision [[2012] FWA 6436] was issued on 30 July 2012 with respect to the content of the orders.
[5] Each application was made pursuant to s.611 of the Fair Work Act 2009 (the Act) on the grounds that each of the applications for orders to produce was made vexatiously, without reasonable cause and/or had no reasonable prospect of success.
Legislative provisions
[6] Section 611 of the Act states:
611 Costs
(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 ofthe 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.
(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).
Consideration
[7] The orders addressed to the ABC sought three things:
1. All documents evidencing or recording communications between the applicant (or any of his agents or representatives) and the Australian Broadcasting Corporation or its officers, employees and agents.
2. All documents evidencing or recording the applicant (or any of his agents or representatives) disclosing any information of The Star Pty Limited, Star City Pty Limited, Tabcorp Limited or Echo Entertainment Limited to the Australian Broadcasting Corporation or its officers, employees and agents.
3. All documents evidencing or recording the applicant’s participation or involvement in any interviews, segment or broadcasts about The Star Pty Limited, Star City Pty Limited, Tabcorp Limited or Echo Entertainment Limited, including interviews, segments or broadcasts aired on the 7.30 Report on 2 and 16 April 2012.
[8] The orders addressed to Seven Network Limited and Seven Network Operations Limited were in essentially the same form save that they referred, in category 3, to the Seven News 6pm bulletin on 20, 21 and 22 February.
[9] During the course of the hearing the Applicant made a concession that affected the orders sought by the Respondent. This concession (that went to remedy with respect to the unfair dismissal) had an effect on the orders sought to be addressed to the Applicant and resulted in the Respondent no longer pressing for the orders addressed to the ABC.
[10] During the hearing further commitments made by the Applicant resulted in amendments to the orders sought to be addressed to the Applicant. As a result of these commitments Mr Seck indicated that the Respondent was prepared to make a related change to the orders addressed to Channel 7 including that category 1 would not be pressed; categories 2 and 3 would be limited to the period 1 February 2012 to 13 March 2012; and amendments would be made to delete some of the wording of category 2. Mr Dawson indicated that Channel 7 would accept such redrafted orders. The changes in the orders against the Applicant are reflected in the changes proposed to the orders addressed to Channel 7.
[11] At the conclusion of proceedings I set aside the order addressed to the ABC and those addressed to Channel 7. With respect to Channel 7 it was left to the Respondent to seek orders in the amended form if required.
[12] Mr Dawson then applied for a costs order against the Respondent in accordance with s.611 of the Act.
[13] It is relevant to the consideration of whether costs should be ordered in favour of the ABC and Channel 7 to understand that the original orders issued reflect the original orders sought to be addressed to the Applicant. The resolution of the orders addressed to the Applicant (which was part of the proceedings of 26 July 2012) had, therefore, a consequential effect on the orders issued to the ABC and Channel 7.
[14] The orders addressed to the Applicant were amended in the proceedings in light of concessions and undertakings made by him. Whilst the orders addressed to the Applicant were broad (particularly in terms of time periods in some matters) those orders were not framed such that, if I was required to determine the matter I would, in all likelihood, find they were vexatious, or without reasonable cause or had no reasonable prospect of success .
[15] That orders to produce documents may be narrowed in their scope in response to some objection to those orders is not unusual. The extent to which orders are narrowed will depend on the matters at issue in the proceedings and the extent to which the documents sought to be produced might be relevant to those proceedings. That orders may be narrowed will not necessarily mean that the orders originally sought were sought vexatiously, without reasonable cause or with no reasonable prospect of success.
[16] As the parties to the unfair dismissal application have made clear this is not a simple, straight forward unfair dismissal (to the extent that any are) but is embroiled with other matters that were occurring in the public arena with respect to the Respondent at or around the same time. This included matters being reported on television news and current affairs programs. That complementary orders were sought with respect to the news and current affairs programs, to the extent they went to matters in the unfair dismissal, is not surprising.
[17] In this matter it is the Applicant for unfair dismissal who has made a concession during the proceedings on 26 July 2012 that has resulted in the Respondent no longer pressing the orders it sought be addressed to the ABC.
[18] Whilst Mr Dawson says that the Respondent should have quickly indicated that it no longer pressed for the orders addressed to the ABC I do not consider there was any inordinate delay in it doing so. The concession came from the Applicant on the same day in the same proceedings. Had the concession not been made argument would have gone to the breadth of the order addressed to the ABC.
[19] There is no basis on which I could conclude that the application for the order addressed to the ABC was made vexatiously, without reasonable cause or that it had no reasonable prospect of success. Until the concession was made there was reasonable cause (that went to reinstatement) and, for the reasons I have given above, there was a reasonable prospect of success given its connection to the matters in the unfair dismissal and that it may well survive albeit in a narrowed sense. I therefore dismiss the application for costs made by the ABC.
[20] As to the orders addressed to Channel 7 I do not consider them vexatious or without reasonable cause. The matters at issue in the unfair dismissal may well, on the material submitted to date, canvass issues aired on Channel 7 and the extent of the Applicant’s involvement in that. It was not unreasonable that the Respondent in the unfair dismissal matter should seek complementary material from Channel 7 to that sought from the Applicant.
[21] Again I reiterate that it is not uncommon for orders to be narrowed on application by a party to whom the orders are addressed. The ultimate outcome of these proceedings is that Channel 7 does not object to the narrowing of the orders. Therefore it is difficult to conclude that the application for the orders had no reasonable prospect of success.
[22] For this reason I reject the application for costs made by Channel 7.
[23] Issues were raised during argument on the costs application as to the jurisdiction of FWA to issue an order for costs when the matter involved a third party (the ABC and Channel 7) to the substantive matter. Given my findings as to costs I do not need to address this issue.
COMMISSIONER
Appearances:
Y Shariff of Counsel for the Applicant
M Seck of Counsel for the Respondent
ATS Dawson of Counsel for Seven Network Limited, Seven Network (Operations) Limited, and the Australian Broadcasting Corporation
Hearing details:
2012.
Sydney:
July 26.
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