Jeffrey Vassallo v Easitag Pty Ltd

[2021] FWC 3913

[2021] FWC 3913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jeffrey Vassallo
v
Easitag Pty Ltd
(C2021/3795)

VICE PRESIDENT HATCHER SYDNEY, 8 JULY 2021

Appeal against decision [2021] FWC 3479 of Commissioner Cirkovic at Melbourne on 17 June 2021 in matter number C2020/6254 – stay application

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 6 July 2021.

[2] Mr Jeffrey Vassallo has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Cirkovic on 17 June 2021. 1 In that decision, the Commissioner determined to make an indemnity costs order against Mr Vassallo and in favour of the respondent Easitag Pty Ltd (Easitag) pursuant to s 611 of the Fair Work Act 2009 (FW Act) in respect of proceedings initiated by Mr Vassallo for the revocation of a decision made by the Commission in 2017. That application was made pursuant to s 603 of the FW Act. Mr Vassallo’s substantive s 603 application was earlier rejected by the Commissioner in a decision issued on 12 January 2021.2 An application by Mr Vassallo for permission to appeal that decision was rejected by a Full Bench in a decision issued on 23 March 2021.3

[3] In the decision under appeal, the Commissioner determined that Mr Vassallo’s s 603 application had no reasonable prospects of success and that she was prepared to exercise her discretion to make an indemnity costs order pursuant to s 611 of the FW Act. 4 The Commissioner made directions for the filing of documents and submissions in relation to the quantification of the costs order,5 however, the Commissioner has not yet made a costs order.

[4] In his notice of appeal, Mr Vassallo seeks a stay of the Commissioner’s decision pending the hearing and determination of the appeal. This decision is concerned with the stay application made by Mr Vassallo.

[5] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 6 Paragraph [5] of that decision states: 

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[6] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 7

[7] First, I will deal with the question of prospects of success. Mr Vassallo’s notice of appeal contains seven grounds of appeal; however, each ground of appeal makes essentially the same point, namely that Easitag did not file a Form F53 notice advising that it would be legally represented in the proceedings. In respect of the issue of permission to appeal, the notice of appeal repeats the contention that because no notice of legal representation was filed, Easitag had no capacity to claim costs. In his oral submissions this morning, Mr Vassallo has expanded upon this to say that he contends that absent a Form F53, the Commission neither had the power to grant legal representation pursuant to s 596 in the proceedings nor the power to order costs pursuant to s 611 of the FW Act.

[8] Having regard to those grounds and further submissions, I am not satisfied on a preliminary assessment of the matter that the appeal has the requisite reasonable prospects of success. Although the filing of a Form F53 notice is important because it is necessary to place the other side on notice that the party is legally represented, and thus that there may be costs implications in the proceedings, I am not persuaded at this point that it is reasonably arguable that the filing of such a notice is a jurisdictional prerequisite either for the making of a costs order under s 611 or for the grant of permission for legal representation under s 596 of the FW Act.

[9] Further, as a matter of practicality and substantive fairness, I note that on 19 August 2020 (slightly over a week after Mr Vassallo filed his s 603 application), Easitag’s lawyers sent lawyers acting for Mr Vassallo in separate proceedings in the Federal Court correspondence in which, among other things, it was stated that the same lawyers were acting for Easitag in the Commission proceedings, that Mr Vassallo’s s 603 application was misconceived and had been initiated without reasonable cause and constituted an abuse of process, and that Easitag would be seeking costs. This correspondence seems to me to serve the practical function of a Form F53 notice in that it made Mr Vassallo aware that Easitag was being legally represented and that it would ultimately seek costs in the proceedings.

[10] Further, I note that permission for legal representation was granted to Easitag by the Commissioner on 27 August 2020 at the first directions hearing in the matter. Mr Vassallo did not appeal the Commissioner’s decision to grant permission for legal representation at the time. In his appeal from the final decision made by the Commissioner to which I have earlier referred, Mr Vassallo did raise a challenge to the grant of legal representation in the matter, and in doing so, raised the same point concerning the filing of a Form F53 notice which he has raised this morning. As earlier stated, the Full Bench refused permission to appeal and specifically rejected Mr Vassallo’s contention in this respect at paragraph [9] of its decision. The grant of legal representation at that earlier stage in the proceedings again put Mr Vassallo on notice that Easitag was legally represented in the proceedings and thus put him on notice that, ultimately, there would be a question of costs in the matter if he was unsuccessful.

[11] I repeat that on my preliminary assessment of the merits of the grounds of appeal aided by Mr Vassallo’s submissions this morning, I am not persuaded that Mr Vassallo’s appeal amounts to an arguable case with some reasonable prospects of success. This makes it unnecessary for me to consider the balance of convenience, although I note the fact that the Commissioner has not yet made any costs order. This would tend to suggest that the balance of convenience does not weigh in favour of the making of a stay order at this time.

[12] For the reasons I have given, the stay application is dismissed.

VICE PRESIDENT

Appearances:

J Vassallo on his own behalf.

L Parks on behalf of the respondent.

Hearing details:

2021.

Sydney (by telephone).

6 July.

Printed by authority of the Commonwealth Government Printer

<PR731375>

 1   [2021] FWC 3479

 2   [2021] FWC 132

 3   [2021] FWCFB 1554

 4   [2021] FWC 3479 at [47]

 5   Ibid at [48]

 6 [2000] AIRC 785, Print S2639

 7   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]