Jeanette McKinnon v Eventide Homes (Stawell) Inc
[2013] FWCFB 9405
•24 DECEMBER 2013
[2013] FWCFB 9405 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Eventide Homes (Stawell) Inc.
(C2013/5823)
VICE PRESIDENT WATSON | SYDNEY, 24 DECEMBER 2013 |
Appeal against decision [[2013] FWC 5273] of Commissioner Bissett at Melbourne on 8 August 2013 in matter number U2013/6757 - permission to appeal not granted - appeal dismissed - application for costs - Fair Work Act 2009 s.611.
Introduction
[1] This decision concerns an application for costs made by Eventide Homes (Stawell) Inc (Eventide Homes) against Mrs Jeanette McKinnon arising from an appeal determined by this Bench on 16 October 2013. Mrs McKinnon sought permission to appeal against the decision of Commissioner Bissett handed down on 8 August 2013. 1 In its decision,2 the Full Bench did not grant permission to appeal and the application for permission to appeal was dismissed.
[2] After the Full Bench handed down its decision, the solicitors for Eventide Homes made an application for the payment of costs against Mrs McKinnon. Directions were issued for the filing of submissions by both parties on the basis that the costs application would be determined on the papers. Eventide Homes filed an outline of submissions in support of its application. Mrs McKinnon also filed submissions and documentary material in response.
Background
[3] The findings of the Full Bench can be summarised from the following extracts of the Full Bench decision:
“[2] The application for permission to appeal relates to a finding by the Commissioner at first instance that a binding agreement was reached between the parties at a telephone conciliation for the settlement of this matter, and that therefore the application has no reasonable prospects of success. Mrs McKinnon’s application was dismissed by Commissioner Bissett on this basis.
[3] The grounds of appeal challenge the finding made by the Commissioner and allege that the facts are distinguishable from cases relied on by the Commissioner. The key cases applied by the Commissioner were Masters v Cameron 3and Australian Postal Corporation v Gorman4 and the application of these principles in the Full Bench decision of Zoiti-Licastro v Australian Taxation Office5.
[4] We are satisfied that these authorities were properly applied by the Commissioner.
[5] We are not persuaded that any of the findings of fact made by Commissioner Bissett are erroneous. We do not accept that the Commissioner acted in a biased or inappropriate manner in hearing and determining this matter.
[6] We are therefore not of the view that it is in the public interest to grant permission to appeal. Nor do we consider that there is any other reason for permission to appeal to be granted, if such grounds are available. We dismiss the application for permission to appeal.”
[4] Eventide Homes seeks an order that Mrs McKinnon bear the costs it incurred in responding to Mrs McKinnon’s appeal for the following reasons:
● It should have been reasonably apparent to Mrs McKinnon that the appeal had no reasonable prospects of success;
● The appeal was made vexatiously or without reasonable cause; and
● Eventide Homes incurred costs because of Mrs McKinnon’s unreasonable act in connection with the conduct or continuation of the matter by filing the appeal and/or by refusing to withdraw the appeal.
[5] Eventide Homes disclosed that prior to the appeal proceeding it had written to Mrs McKinnon foreshadowing an application for costs if she proceeded with the application for permission to appeal.
[6] Mrs McKinnon filed written submissions and additional documentation concerning the late filing of submissions, the nature of the payment made for the settlement of the matter, false information provided in the employer’s response, changes in shifts, the merits of her unfair dismissal application, and other settlement proposals made.
Legislation
[7] The power to make an order for costs is dealt with in s.611 of Fair Work Act (the Act), which relevantly provides:
“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.”
[8] The general position in proceedings before the Fair Work Commission (Commission) is that each party bears their own costs: s.611(1). However costs may be awarded in either of the circumstances described in s.611(2). In this case it is contended that the appeal by Mrs McKinnon had “no reasonable prospect of success” and was made “vexatiously or without reasonable cause”. If a finding is made on any of these grounds, the Fair Work Commission has a discretion to make an order for costs but is not required to do so.
[9] In ACI Operations v Cook 6 a Full Bench endorsed the following approach of Commissioner Thatcher in Walker v Mittagong Sands Pty Ltd7:
“[44] In relation to the criteria ‘without reasonable cause’ and ‘no reasonable prospect of success,’ I have concluded that:
(a)the criteria ‘no reasonable prospect of success’ in paragraph 611(2)(b) is lower and wider than the term ‘without reasonable cause’ referred to in paragraph 611(2)(a), which is similar to the test traditionally applied by a court to summarily dismiss actions. Circumstances which satisfy the ‘without reasonable cause’ test would be likely to satisfy the ‘no reasonable prospect of success’ criterion, but the reverse would not necessarily apply.
(b) when FWA is required to form an opinion as to whether the application had a reasonable prospect of success, it is not to undertake an assessment of whether a certain and concluded determination could be made that the proceedings would necessarily fail. The test in paragraph 611(2)(b) is not about whether there is no ‘real’ prospect of success and does not of necessity require that the proceedings were hopeless or bound to fail (by applying a test such as whether an application is manifestly untenable or groundless).
(c) a similar approach should be taken by FWA to the construction of the expression ‘no reasonable prospect of success’ as was adopted by the majority of members of the High Court in Spencer in respect of the term ‘no reasonable prospect’, namely:
“No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like ‘no reasonable prospect’ is to be avoided. ... Rather, full weight must be given to the expression as a whole.”
(d) it is a matter of judgement, sometimes of fine judgement, in all of the circumstances of a particular case whether an application or response had no reasonable prospect of success.
(e) an assessment of whether an application or response was made without reasonable cause or had no reasonable prospect of success should be undertaken with caution, particularly when the matter had not been determined by FWA and questions of fact and issues of law are important and in dispute.”
[10] We propose to apply these principles in the consideration of the application in this case.
Were there Reasonable Prospects of Success in the Appeal?
[11] It is clear from the extracts quoted above that this appeal related to a very narrow issue. The Commissioner found that Mrs McKinnon’s application had no reasonable prospects of success because a binding settlement was reached at a telephone conciliation concerning the matter. The application for permission to appeal was dismissed because we were not satisfied that any public interest had been demonstrated.
[12] Eventide Homes contends that the five grounds of appeal raised by Mrs McKinnon were not proper grounds of appeal and were manifestly untenable. It also submits that the contention that there was a public interest in granting the appeal was unsound.
[13] In her submissions regarding the costs application Mrs McKinnon repeated some of her submissions in the appeal as well as other matters relating to the termination of her employment and the processes involved in her unfair dismissal application. Her submissions do not, in our view, establish that the grounds of appeal had any substance or that they had reasonable prospects of success. Indeed we consider that much of her submissions, as in the application for permission to appeal, were misconceived and did not relate to the issues raised by the appeal and the costs application.
[14] In view of our conclusion, we find that the FWC has jurisdiction to make an order for the payment of costs. We turn to consider whether an order should be made in the circumstances of this case.
Should a costs Order be made?
[15] We are mindful of the general position that each party bears its own costs in matters before the Commission. We are also mindful that the issues sought to be raised by Mrs McKinnon went well beyond the scope of the decision under appeal. As we have concluded above, the appeal grounds had no reasonable prospects of success. Mrs McKinnon was put on notice of this matter by Eventide Homes prior to the hearing of the appeal by way of a letter dated 20 September 2013. She nevertheless proceeded with the appeal and sought to raise a number of arguments that were lacking in substance and unrelated to both the decision at first instance and the appeal.
[16] In these circumstances we are of the view that a costs order should be made. However we will confine the costs to those incurred after the letter from Eventide Homes’ solicitors of 20 September 2013 until the hearing and determination of the appeal on 16 October 2013. We direct the parties to confer on the quantum of such costs. Any dispute as to quantum will be settled by Deputy President Gostencnik.
VICE PRESIDENT WATSON
Final written submissions:
Mrs J McKinnon,13 November 2014
Eventide Homes (Stanwell) Inc., 6 November 2013
1 [2013] FWC 5273.
2 [2013] FWCFB 8123.
3 (1954) 91 CLR 353.
4 [2001] FCA 975.
5 PR967544.
6 [2012] FWAFB 3292.
7 [2011] FWA 2225 at [44].
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