Harpreet Dhillon v Sydney Trains

[2017] FWC 3106

[2017] FWC 3106

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harpreet Dhillon
v
Sydney Trains
(U2016/11589)

COMMISSIONER MCKENNA SYDNEY, 19 JUNE 2017

Application for relief from unfair dismissal – Application for costs – Costs application dismissed

[1] On 16 February 2017, I dismissed an application made by Harpreet Dillon pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he had sought an unfair dismissal remedy. The relevant decision (Dhillon v Sydney Trains[2017] FWC 553) describes matters including my findings relevant to Mr Dhillon’s application. It is unnecessary to summarise the matters described in the earlier decision, albeit I will touch upon some aspects.

[2] Mr Dhillon’s former employer and the respondent to the substantive application for an unfair dismissal remedy, Sydney Trains, subsequently made an application with respect to an order for costs in its favour.

[3] On 6 June 2017, the day of the hearing of the costs application, I announced the costs application was dismissed. I also said would publish reasons - which now follow.

Summary of submissions advanced by Sydney Trains concerning its costs application

[4] Sydney Trains sought costs on the following bases:

(a) Mr Dhillon caused Sydney Trains to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter within the meaning of s.400A of the Act;

(b) further, or in the alternative, within the meaning of s.611(2)(a) of the Act, the application was made vexatiously or without reasonable cause;

(c) further, or in the alternative, it should have been reasonably apparent to Mr Dhillon that the application had, within the meaning of s.611(2)(b) of the Act, no reasonable prospect of success.

[5] In so submitting, through its solicitors, Sydney Trains relied on matters set-out in certain affidavit material, which described matters such as to chronology; relevant materials; and settlement-related matters (including foreshadowing by Sydney Trains of a costs-related application). The submissions for Sydney Trains referred, among other matters, to certain aspects of the earlier decision, including at paragraphs [29], [30], [31], [33] and [40].

[6] In advancing its application for an order for costs, Sydney Trains also referred to matters including extracts from the Explanatory Memorandum in relation to what became s.400A of the Act and the consideration by the Commission in a costs application in Rainshield Roofing Pty Ltd v Just Relations – Consultants & Paerau[2014] FWC 3777 (“Rainshield”) at [33], [34] and [47] – a case submitted to have, essentially, some relevant parallels as to considerations in relation to costs. Here, Sydney Trains noted, I made a finding Mr Dhillon had “dissembled”. Sydney Trains submitted that in circumstances where the reason for dismissal was theft, and the Commission found the conduct occurred, it must follow that the application was made without reasonable cause, and that filing the application was an unreasonable act in connection with the matter and refusing to settle was an unreasonable act in connection with the continuation of the matter.

[7] Sydney Trains referred to the discussion in Blagojevch v Australian Industrial Relations Commission [2000] FCA 483 (“Blagojevch”) and Ferry v GHS Regional WA Pty Ltd[2016] FWC 3120 (“Ferry”) at 17. Sydney Trains submitted that Mr Dhillon showed a wilful disregard to the facts known - first in being aware of his own conduct, but also from the time when he was provided a substantial body of evidence that would be relied upon by Sydney Trains. Drawing from the matters to which reference was made, Sydney Trains submitted that various dates it identified as primary and/or alternative dates would be appropriate commencement dates for costs calculations to run (namely, the date the application was filed; the date of the telephone conciliation; the dates, respectively, of the first and/or second settlement offers; the date of the filing and service of all its materials concerning the substantive application).

[8] An order for costs, Sydney Trains submitted, would be consistent with matters including “a fair go all round” in the exercise of discretion and “the circumstances of the original proceedings warrant a departure from the ordinary position that each party bear its own costs” and “it is simply not fair” that Sydney Trains be required to bear its own costs. Sydney Trains submitted the circumstances of this case put matters into the very category of cases that the insertion of s.400A of the Act was designed to address, namely, “the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner”.

[9] Sydney Trains submitted, in the alternative, it was entitled to an order for costs under either s.611(2)(a) or s.611(2)(b) of the Act, or both. In such respects, Sydney Trains largely repeated/relied upon matters advanced in relation to its s.400A cost application and further submitted that, in circumstances where I had not accepted Mr Dhillon’s version of events, considerations arose of a type discussed in Re Kanan v Australia Postal and Telecommunications Union [1992] FCA 366 (“Kanan”) at 36.

[10] Sydney Trains submitted indemnity costs were appropriate, given what it described as Mr Dhillon’s wilful disregard of the known facts and his imprudent rejection of reasonable settlement offers. In this regard, Sydney Trains referred to the discussion in Stanley v QBE Management Services Pty Limited T/A QBE[2012] FWA 10164 (“Stanley”), including authority cited therein, of circumstances which have resulted in orders for indemnity costs. Sydney Trains sought leave, in the event its costs application were successful, to file further submissions in relation to the quantum of costs. (Sydney Trains later submitted that, if indemnity costs were not ordered then an order for party/party costs should be made.)

Summary of submissions advanced by Mr Dhillon concerning the costs application

[11] Mr Dhillon, through counsel, noted the materials and bases upon which the application for costs had been made by Sydney Trains. Mr Dhillon referred to what was characterised as the “general rule” described in s.611(1) of the Act, namely that “A person must bear the person’s own costs in relation to a matter before the FWC.” Unlike in other jurisdictions, the general rule applies to proceedings before the Commission and costs do not “follow the event”; and nor are there “rules” of the Commission which would govern the ordering of indemnity costs as opposed to solicitor/client costs – in contrast with the procedure in the civil jurisdiction of the courts. The exceptions to the general rule concerning costs are found in s.611(2) of the Act, which are of general application in matters before the Commission. Here, Sydney Trains sought to rely in making its application for costs on the discretion to order costs found in both s.611(2)(a) and s.611(2)(b) of the Act, separately from the provision made in s.400A of the Act.

[12] As to the matters addressed in s.611(2)(a) of the Act, it was submitted there was nothing “irregular” concerning the manner in which Mr Dhillon invoked the jurisdiction of the Commission. For example, the application was made within time and otherwise was not statute-barred or subject to jurisdictional challenge. The position concerning Mr Dhillon’s application was distinguishable from the facts and the law (then applying) in Kanan, being a case in which summary judgment was sought in relation to the relevant application on the basis of a want of jurisdiction; it involved a “strike out” case. “Strike out” applications whenever made are determined upon the facts as stated to be the facts by an applicant, and so an applicant’s case is taken at its highest with no evidence led by a respondent; and if an applicant's case fails on such factual basis then that application cannot be successfully maintained and the case falls to be dismissed for want of jurisdiction. Among other matters, Mr Dhillon drew attention to discussion in Kanan in submitting that the matters relied upon by Sydney Trains were not apposite in the application before me and referred, in particular, to paragraph [29] of the judgment in submitting that a further point of distinction arose in circumstances where there are contested issues of fact and law that fall to be determined in a proceeding. Mr Dhillon submitted that the relevant principles to be applied in assessing s.611(2)(a) of the Act were summarised and identified in Church v Eastern Health t/a Eastern Health Great Health and Wellbeing [2014] FWCFB 810 at [23]-[33], and are well known.

[13] It was submitted that the question arising in determining whether to exercise a discretion to make a costs order under s.611(2)(b) requires both matters identified within the paragraph to be assessed and determined, namely, “it should have been reasonably apparent” and “had no reasonable prospects of success”, including as such concepts had been considered in Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 (“Baker”). Mr Dhillon submitted that, considered in the context of the discussion at paragraph [10] in Baker, the substantive application for an unfair dismissal remedy cannot be so characterised such as to fall within s.611(2)(b) of the Act. The submissions continued that the circumstances did not exist under either of the relevant provisions of s.611(2) of the Act relied upon in the alternative by Sydney Trains. Accordingly, Mr Dhillon submitted, any application brought in reliance upon the discretion to order costs and the exceptions to the “general rule” under s.611(1) of the Act must fail and the application made on such bases by Sydney Trains must be dismissed.

[14] Mr Dhillon noted Sydney Trains also relied upon the facts deposed within its affidavit material and had submitted that the discretions vested in the Commission to order costs be exercised arising under the provisions in s.400A of the Act. Mr Dhillon noted that Sydney Trains placed reliance on Rainshield, although he contended there were matters which constituted points of distinction – including that the facts in Rainshield were significantly different, and the reasons leading to the exercise of the discretion could be distinguished from those in this case despite the attempt made by Sydney Trains to say they are analogous.

[15] Mr Dhillon submitted there was one contested fact that had to be determined in the substantive application. Mr Dhillon denied having engaged in the impugned conduct and Sydney Trains relied on CCTV footage in support of its contention he did so. If this had been determined in Mr Dhillon’s favour the substantive application made would have in all likelihood otherwise succeeded and relief would have been provided including reinstatement, as there were no reasons that would have made such an order inappropriate. Reference was made to matters addressed in the substantive decision including that I had effectively concluded Sydney Trains overstated the effect of what was shown on the CCTV footage and Mr Dhillon denied the alleged conduct; there was a contestable fact in issue in the proceeding, one which was determined adversely to Mr Dhillon. Following matters described in the substantive decision, the finding ultimately made was set out at para [41], without any finding, for example, that the application was doomed to fail or that the evidence given by Mr Dhillon was so untenable or, at worst, false.

[16] Mr Dhillon noted that Sydney Trains placed considerable import on rejection of offers to settle and failure to make a counter-offer. In order for there to be any basis for the offers to have any import, the submissions for Mr Dhillon continued, Sydney Trains must satisfy the Commission that Mr Dhillon’s failure to accept the offers made by it at the time made was an unreasonable act or omission on his part. As to this, it was submitted “With respect, it cannot do so.” As to the reliance by Sydney Trains on Blagojevch, Mr Dhillon drew attention to aspects of what had been said in that judgment, including a passage at [36]. Mr Dhillon submitted that Blagojevch illustrates it is the case not every rejection of an offer will create circumstances in which an unsuccessful litigant is at risk of costs. Something more is required, it was submitted, than the mere fact that an applicant or respondent rejected an offer to settle and, in the end, the offer was more favourable than the outcome for the relevant party; the issue is not to be determined with “20/20 hindsight”.

[17] Mr Dhillon submitted the issue falling to be determined involves proving to the satisfaction of the Commission that at the time the rejection of the offer that this act of rejection was “unreasonable”. Moreover, the mere failure to make any further counter-offer in the context of settlement negotiations was an insufficient basis for the consideration and exercise of the discretion - as what has to be shown and proved is that the failure to make a counter-offer was an “unreasonable” act or omission at the time such decision was made; a time, in this case, at which Mr Dhillon denied the conduct alleged by Sydney Trains and was seeking reinstatement as the principal remedy and placing considerable reliance upon what had been an exemplary employment history. The submissions for Mr Dhillon otherwise adverted to matters surrounding the timing of offers, relevantly in the context of dates concerning the filing and service of evidence and other matters.

[18] Mr Dhillon reiterated that the conclusiveness or otherwise of the CCTV footage had been commented upon by me in the substantive decision. Mr Dhillon noted in particular the comments that, despite the ultimate finding made, what was shown on the CCTV footage as to the asserted placement of an item into a pocket was not as clear as had been contended in Sydney Train’s case. Moreover, the lack of clarity concerning the CCTV footage was conceded by Sydney Trains within correspondence in that it could not state a definitive position in relation to the CCTV footage and could at the highest only say it “appears” Mr Dhillon had engaged in certain asserted conduct. Given the absence of clarity, it was in all the circumstances not unreasonable for Mr Dhillon to have rejected the offer.

[19] Further, the only other offer made to Mr Dhillon by Sydney Trains, namely, payment for four weeks’ base pay, was rejected by Mr Dhillon after he had offered to accept a short period of re-employment with Sydney Trains, said to be of three months, and to thereafter resign. At no time did Mr Dhillon seek any monetary amount from Sydney Trains in addition to such offer for past economic loss or, more simply, lost wages. Developing matters further, it was said there was no requirement for Mr Dhillon in the circumstances of the rejection of his own offer - and the making by Sydney Trains of a further offer - to make any counter-offer as Mr Dhillon had regularly invoked the jurisdiction of the Commission, and his claim not otherwise susceptible to “strike out” consequent upon a lack of jurisdiction could decide reasonably upon continuing to a contested hearing on the contested fact. Moreover, Sydney Trains incurred no substantial costs arising from the decisions made by Mr Dhillon to continue to hearing until it chose to file its own material in the substantive hearing on 23 December 2016 and proceed to the substantive hearing without further offer on its part.

[20] In relation to the reliance by Sydney Trains on Ferry, Mr Dhillon submitted that the case was different for reasons including, for example, partial admissions. The submissions for Mr Dhillon also addressed matters as to what could or could not be ordered in the event a finding were made in favour of the making a costs order as to matters including: the date from which costs were sought; the claim for indemnity costs; the reference by Sydney Trains to Stanley and the familiar considerations relevant to reliance on explanatory memoranda.

[21] Against the background of the matters addressed, Mr Dhillon submitted the application for costs should be dismissed.

Sydney Train’s submissions in response

[22] Shortly stated, the response for Sydney Trains was that:

● Fundamentally, it appeared that the submissions for Mr Dhillon were premised on the same argument that failed at the hearing, namely, that the CCTV footage did not absolutely and categorically prove that he took the mobile telephone.

● The very reason Sydney Trains chose to pursue costs in this matter is the fact that Mr Dhillon, at every occasion, sought to exploit the fact that the CCTV footage did not absolutely and categorically prove he took the mobile telephone.

● In commencing and continuing the proceedings, Mr Dhillon had “tried to get away with it” and caused Sydney Trains to incur significant costs in the process when the reality is Mr Dhillon knew he took the telephone (noting certain findings I made in relation to the substantive application, including at paras [30], [31] and [33]).

● Mr Dhillon caused Sydney Trains to incur costs unnecessarily in circumstances where had behaved unreasonably (s.400A); and/or behaved vexatiously or without reasonable cause (s.611(2)(a)); and or behaved in a manner in which it ought to have been reasonably apparent the application had no reasonable prospects of success (s.611(2)(b)).

[23] While Sydney Trains agreed with the submissions in relation to the “general rule” concerning costs in Commission proceedings, it submitted that the circumstances of this case take it outside the general rule and call for the application of the exceptions. More particularly, Sydney Trains submitted that although passages from submissions for Mr Dhillon appear to be premised on the fact there were no adverse findings made against him, this was misguided for a number of reasons, including: (a) that is obviously not the test as to whether costs should be ordered, and nor is the test “irregularity” as referred to in the submissions for Mr Dhillon; (b) contrary to the submissions for Mr Dhillon, the substantive decision included findings adverse to him, particularly that he had, on the balance of probabilities, “dissembled about what is shown on the CCTV footage”, in circumstances where one dictionary defines dissemble to mean “to conceal or disguise one's true feelings or beliefs”. Sydney Trains made other submissions around this matter, which I do not recount.

[24] Further, it appeared Mr Dhillon relied on the fact that because the CCTV footage was found to not be determinative by the Commission, he was entitled to bring the application and continue the matter despite receiving offers of settlement. For example, his submissions appeared to contend that certain correspondence with an offer by Sydney Trains dealt solely with the CCTV footage whereas a reading of the correspondence indicates this is not the case.

[25] Sydney Trains submitted that, contrary to the submissions for Mr Dhillon seeking to distinguish Rainshield, the factual scenario in that case bears resemblance to this proceeding because the Rainshield applicant denied the conduct that led to his dismissal, despite being presented with evidence indicating to the contrary and rejected reasonable offers of settlement. It was held that by engaging in this conduct, the Rainshield applicant exposed himself to an adverse costs finding as referred to at [47] of that decision. While the factual circumstances differed, the principles expounded in Rainshield can be applied to these proceedings.

[26] As to matters raised in the submissions for Mr Dhillon concerning the timing and type of offers made as between the parties, Sydney Trains submitted that, given two offers were made to which Mr Dhillon made no written counter offer, Sydney Trains saw no utility in further bidding against itself.

Consideration

[27] I begin by noting that the substantive application made by Mr Dhillon was far from an easy case to determine. Mr Dhillon was an employee of Sydney Trains with an unblemished record during the period October 2004 to September 2016, and was consistent in his denial of having engaged in the conduct which led to the dismissal. At its core, the case for Sydney Trains in the substantive proceedings contended that matters could be resolved solely by reference to certain CCTV footage. As to that CCTV footage, I noted as follows:

“[10] I should note that the CCTV footage of the interior of the train carriage involving the applicant is not of high-quality resolution and the segments specifically relevant to this case, being segments which were recorded roughly near the cusp of midnight on 7/8 October 2015, run only to a matter of seconds in time. It must also be said that what was is set-out in records of interviews and/or in the investigative report considered by the respondent mis-described or otherwise overstated what was said to be shown or demonstrably evident on the CCTV footage.

[11]The CCTV footage shot from two different angles within the carriage records the following:

• A bright green mobile telephone cover with what appears to be a typical camera hole was situated on the carriage floor near a bottle in a brown paper bag. It is not possible to discern whether the green cover contained a mobile telephone because the face of the mobile telephone itself (if any) would be on the underside and the quality of the CCTV footage is such that it cannot be discerned whether there is a camera lens beneath the camera hole.



• After descending the stairs to the lower carriage, the applicant bent-down towards where the bagged bottle and mobile telephone cover were located on the carriage floor. It is not possible to discern from either angle of the CCTV footage what the applicant did when he was bent-over towards those two items.



• In the course of standing from his previous bending position, the applicant made some type of movement with his left arm or left hand, or both. The respondent contends the movement involved the applicant placing something in a pocket; the applicant contends the movement involved him repositioning the bag he was wearing which had moved slightly in connection with the bending.



• After the applicant standing, momentarily pausing, and then walking the length of the carriage, the bagged bottle is left remaining in the same location as it was before the applicant bent-down and made the movement involving his left arm/hand as he was standing-up.

[12]The footage does not otherwise show the mobile telephone cover. This allows only two conclusions: either the applicant removed the green item from the carriage floor or, alternatively, he moved the item further under the seat such that it was, by one means or another, then positioned where it was no longer in the line of vision for the CCTV camera to capture as part of the footage. It may be noted, also, that the evidence indicates employees are well-aware that this type of train carriage is equipped with CCTV cameras.” (Bold added)

[28] Against the background of the matters described above as to the CCTV footage, I noted that the case for Sydney Trains had been advanced against “a single piece of evidence” which I characterised as having been mis-described and otherwise overstated in the records of interviews and/or in the investigative report considered by Sydney Trains. I do not understand my description of matters in such respects to be in any contest, in circumstances where, for example, it was common ground that the make of the telephone in question initially was mis-identified and the quality of the CCTV footage - and the extent of what it shows - is as I described. I noted as follows in the substantive decision:

“[29]Despite the submissions for the respondent that matters may be resolved by reference to a single piece of evidence, namely the CCTV footage, and that the Commission “would comfortably and quickly conclude the applicant committed the misconduct alleged against him”, I have not approached the matter in this way. I have considered and reviewed all the evidence and submissions in arriving at my conclusions, not just the CCTV footage itself.

[30] I have, for example, considered the matters put in submissions for the applicant as to the different scenarios which may be available, including that the applicant quickly inspected an empty telephone cover and left it as rubbish for the cleaners to collect, and in so doing the cover was manually moved further beneath the seat and thereby “out of shot” of the CCTV camera. I have considered what was described in the applicant’s submissions (without any contest from the respondent) as the applicant’s “prior good character and conduct in his employment over a period of approximately 13 years without any adverse incident arising or any doubts held concerning his performance and trustworthiness or truthfulness”. I note also the applicant had earlier handed-in some type of women’s cosmetics he found on a train. Importantly, I note that what is shown on the CCTV footage as to the asserted placement of an item into a pocket is not as clear as was contended in the respondent’s case (albeit my own consideration of the CCTV footage accords with what counsel for the respondent propositioned by way of description, despite the submissions for the applicant that “no determinative view one way or another can affix” to the applicant and there were two competing and plausible versions). While there was criticism of the manner in which the applicant’s evidence was adduced (in reply) in respect of the CCTV footage, I draw no inferences adverse to the applicant’s approach in this regard. I have also observed the applicant’s demeanour in the witness box. I am bound to observe the applicant presented as to-the-point and resolute in his denial of the conduct alleged (albeit perhaps less resolute in cross-examination when challenged about his evidence which was to the effect that mobile telephone cases are, for example, frequently left on trains as rubbish or as discarded/abandoned items, essentially valueless to the applicant at least, and treated as rubbish for cleaners to dispose of.” (Bold added)

[29] This was a strongly contested and, I might add, a strongly contestable case - and one which could not, as I noted in the decision, be dealt with only on the basis of the evidentiary matter of the CCTV footage upon which Sydney Trains said it solely relied, more particularly given what I described about the poor quality and recorded content of that footage. Moreover, counsel for each party made detailed submissions in the substantive application against what I described, in part, as being the “backdrop” of cases such as Briginshaw v Briginshaw 1, King v Freshmore (Vic) Pty Ltd2 and Walker v Salvation Army (NSW) Property Trust T/A The Salvation Army – Salvos Stores3. As noted in para [30] of the substantive decision it transpired my own consideration of the CCTV footage “accorded with” what counsel for Sydney Trains had “propositioned by way of description”, notwithstanding the submissions by counsel for Mr Dhillon that no determinative view one way or another could affix and there were “two competing and plausible versions” of what was shown on the CCTV footage.

[30] In the end, I noted that in applying the requisite standards described in the authorities, I was led to a conclusion for which Sydney Trains contended, and in relation to which I had also – as I was, on the authorities, bound to do - formed my own concluded view. Much was made in the case advanced by Sydney Trains in the costs application, in what I thought was a somewhat overstated or over-emphasised way in relation to a decision which addressed a range of matters, including matters that were not favourable to the case advanced by Sydney Trains, about my comment Mr Dhillon had “on the balance of probabilities, dissembled about what is shown in the CCTV footage”, i.e., in my accepting or concluding to that standard as to what had been propositioned by way of description in the submissions for Sydney Trains.

[31] I may also note that my decision included, for example, acceptance of aspects of the submissions for Mr Dhillon as to matters relevant for consideration in relation to s.387(g) of the Act. Among other matters, I noted at para [38] that although Sydney Trains, as an employer of some 10,000 employees, had in-house human resource management, and external resources, the procedures adopted were characterised by avoidable error; and that there were unexplained or unsatisfactorily explained discrepancies in relation to certain matters. I further commented at para [39]: “Given its resources, it might reasonably have been expected that the respondent and/or its contracted investigator would have dealt with matters more correctly and time-efficiently, rather being attended by error and then by changes to allegations in a period spanning over the better part of a year.”

[32] On my consideration of the matters within the written outlines of submissions, as supplemented and developed in the oral submissions, I concluded on 6 June 2017 that this was a matter where the “general rule” applies as to costs. I was not persuaded on the basis of what was before me as to the costs application that the earlier substantive application for an unfair dismissal remedy properly arose, to adopt the descriptor used in the parties’ submissions, as an “exception” of the type apt for a costs order given the relevant provisions of the Act upon which Sydney Trains relied - including in the context of Mr Dhillon’s commencement and continuation of the proceedings; in the context of the settlement offers that were exchanged; and in the context of my own finding that, on the balance of probabilities, the characterisation of what Sydney Trains described as being shown on the CCTV footage and other matters relied upon by Mr Dhillon did not lead me to conclude that the dismissal was harsh, unjust or unreasonable.

[33] In short, my consideration of the bases upon which the costs application was advanced by Sydney Trains did not lead me to the requisite satisfaction concerning the costs application upon which a relevant order may be considered or made. Absent a finding or findings as to the matters in relation to which jurisdiction is enlivened to make a costs application under the sections of the Act upon which reliance was placed by Sydney Trains, the Commission does not then have discretion to make any costs order. In the circumstances, it is thereby unnecessary to consider other aspects of the parties’ submissions about the exercise of discretion and whether, for example, leave should be given concerning additional material as to the quantification and the like.

[34] Even if jurisdiction had been enlivened, I would not, in the exercise of discretion, have made an order for costs. While I dismissed Mr Dhillon’s application for an unfair dismissal remedy, Sydney Trains did not have what perhaps might be described as a decisive win, given certain of my conclusions in the substantive decision. In this regard, it was a matter where, as counsel compendiously described matters, his client Mr Dhillon “just lost the case”.

[35] With the publication of these reasons following upon the earlier dismissal of the costs application, the proceedings are now concluded.

COMMISSIONER

Appearances:

R Moore of counsel for Mr Dhillon.

A Sharp, solicitor, for Sydney Trains.

Hearing details (on the costs application):

2017.

Sydney:

June 6.

 1 (1938) 60 CLR 336; [1938] ALR 334

 2   Unreported decision of the AIRC per Ross VP, Williams SDP and Hingley C; 17 March 2000; Print S4213

 3   [2017] FWC 32

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