Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy

[2017] FWC 6002

[2017] FWC 6002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Joseph Costelloe
v
Origin Energy Resources Limited T/A Origin Energy
(U2016/13231)

COMMISSIONER BISSETT MELBOURNE, 15 NOVEMBER 2017

Application for relief from unfair dismissal.

[1] Mr Joseph Costelloe made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal in relation to his employment with Origin Energy Resources Limited T/A Origin Energy (Origin Energy). Mr Costelloe resigned his employment on 2 December 2015. His application for relief from unfair dismissal was made on 2 November 2016.

[2] Origin Energy made objection to Mr Costelloe’s application on the grounds that it was filed outside the statutory time limit specified in s.394(2) of the Fair Work Act 2009 (FW Act). That objection was upheld and Mr Costelloe’s application was dismissed by Senior Deputy President Drake. Mr Costelloe successfully appealed that decision.

[3] Mr Costelloe’s application for an extension of time was subsequently heard by me and on 8 August 2017 I dismissed the application for an extension of time within which to make his application (the August decision). Mr Costelloe appealed that decision but permission to appeal was not granted.

[4] On 22 August 2017 Origin Energy made an application for costs against Mr Costelloe. The determination of that matter was held in abeyance pending the determination of Mr Costelloe’s appeal. The application for costs is due to be heard on 22 November 2017.

[5] On 30 and 31 October 2017 respectively Mr Costelloe made applications to the Commission to issue orders for production of documents and an order to a person to attend the Commission to give evidence in relation to the costs application. On 6 November 2017 I indicated to Mr Costelloe that I was not inclined to grant his applications but would hear from the parties on the matters if he wished to be so heard. On 8 November 2017 Mr Costelloe indicated that he did wish to be heard. The matter was listed for Mention by telephone for this purpose on 14 November 2017.

The costs application

[6] Origin Energy’s costs application is, in brief, based on the evidence of Ms Melanie Thorley, a solicitor engaged by Mr Costelloe and called to give evidence by Order of the Commission on application by Mr Costelloe, an admission in evidence by Mr Costelloe and the findings of the Commission in the August decision.

[7] Ms Thorley’s evidence was that she had spoken to Mr Costelloe about constructive dismissal and walked him through the unfair dismissal application form on 29 October 2015. Mr Costelloe, in his evidence, admitted that he had the capacity to make an application to the Commission during the statutory 21 day period but took no action to inform himself of his rights.

[8] Origin Energy’s application is that, given his admission, it should have been reasonably apparent to Mr Costelloe that his application for an extension of time was “without prospect of success”.

[9] Further, Origin Energy says that there were unreasonable acts and omissions of Mr Costelloe that caused costs to be incurred by Origin Energy. These included: continuation of the proceedings after receiving a letter from Origin Energy on 29 May 2017 in which it advised Mr Costelloe that his application had no reasonable prospect of success; continuation of proceedings after Origin Energy made an offer to Mr Costelloe on 5 June 2017 following the evidence of Ms Thorley to not seek costs if he discontinued proceedings; and continuation of proceedings following his admissions in evidence.

[10] Origin Energy seeks costs incurred by it from 7.00pm on 5 June 2017.

The Form F51 and F52 applications

[11] Mr Costelloe seeks an order requiring the production of documents as follows:

Incoming and outgoing phone records (as supplied by telecommunications provider) from previously engaged solicitor Melanie Thorley of MJT Law for the period October 29, 2015 to November 13, 2015:

Both:

MJT Law landline – (number supplied)

Ms Thorley mobile – (number supplied).

[12] Mr Costelloe also seeks an order requiring Ms Thorley to attend the hearing of the costs application to give evidence in relation to the phone records.

Submissions

[13] In both the written reasons for the applications and his oral submissions on 14 November 2017 Mr Costelloe argued that the records would show that there was no conversation between himself and Ms Thorley on 29 October 2015 or any of the days following. He submits that the Commission found as a matter of fact, that the phone call (on 29 October 2015) occurred. The production of the phone records he says “will leave doubt as to the existence of any such phone call” between himself and Ms Thorley.

[14] Mr Costelloe submits that the only time during the hearing of his application for an extension of time that Origin Energy indicated it would seek costs was at the end of the first day of hearing (5 June 2017) following evidence of the “disputed facts” of the interaction he had with Ms Thorley on 29 October 2015. He says that the interaction as put by Ms Thorley never occurred. He submits that production of the phone records will show that he did not have any interaction with Ms Thorley on that day. Mr Costelloe submits that it is only on a finding that he did have the conversation with Ms Thorley and that he was walked through the unfair dismissal forms can “that then be accepted as a fact at a later point” and this is why the interaction of 29 October 2015 is highly critical in any determination that he continued the matter unreasonably.

[15] Mr Costelloe relies on the decision in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union 1 (Hail Creek Coal) in support of his contention that, whilst the Commission is not bound by the rules of evidence this does not mean the rules are irrelevant.2 He submits that without the evidence (documents) he seeks to be produced he will be denied natural justice.

[16] Mr Costelloe says Ms Thorley should be called so that she can identify the phone numbers she called in the records. Mr Costelloe says that Ms Thorley may change her testimony when she sees the phone records.

[17] Mr Costelloe in emails sent to the Commission following the mention in relation to his applications for orders says that there are “disputed facts” and there “must be a hearing” and that he has “had enough of lies and the readily [sic] acceptance of them by those in position” [of authority]. He says the findings in the August decision are “based on Ms Thorley [sic] evidence” and “totally ignored [his] evidence”.

[18] Origin Energy submits that Ms Thorley has no evidence that is relevant to its application for costs against Mr Costelloe. It submits that the costs application is to be determined based on the facts found in the primary proceedings and that it is not appropriate for the Commission to reopen factual questions which were resolved in those primary proceedings. It submits that new evidence should only be produced where it is relevant to the matters to be decided.

Legislation and relevant principles

[19] The Fair Work Commission (Commission) has a broad discretion on how it may inform itself. Section 590 of the FW Act states:

590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions; 

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; 

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any); 

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report; 

(f) by conducting inquiries; 

(g) by undertaking or commissioning research; 

(h) by conducting a conference (see section 592); 

(i) by holding a hearing (see section 593).

[20] In Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 3 Clerks (Alcoa) Case) Munro J said:

In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.

[21] The relevant considerations in deciding whether to issue an order seeking documents are:

i. Whether the documents are specified with reasonable particularity;

ii. Whether the documents are relevant to an issue which might arise in the hearing of the matter;

iii. Whether production would be oppressive; and

iv. Whether the request is a fishing expedition.

[22] In Patrick Stevedores No 1 Limited  4 his Honour Vice President Ross, in considering the issue of subpoenas said:

…In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.

The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted.

Overall however, the decision as to the issue of the order must be based on a “judgement upon the facts of the case.” That is, there is no hard and fast rule to be applied.

Consideration

[23] The substantive matters in the primary matter of this case have been decided. The primary matter was whether an extension of time should be granted to Mr Costelloe to make his application for unfair dismissal to the Commission. The relevant findings of fact in that primary matter are set out in the August decision. Mr Costelloe does not agree with these findings. As was his right he appealed the August decision.

[24] The Full Bench in Costelloe v Origin Energy Limited T/A Origin Energy 5 said:

[30] Mr Costelloe submitted that the Commissioner erred in her conclusion that the advice provided by Ms Thorley did not provide an acceptable reason for the delay in Mr Costelloe bringing his claim for unfair dismissal.

…

[34] The Commissioner found Ms Thorley to be a witness of credit and was satisfied that she did ‘take Mr Costelloe through’ unfair dismissal matters. The Commissioner also noted that Mr Costelloe conceded during his evidence that he raised the issue of constructive dismissal with Ms Thorley around 29 October and that the expression ‘forced resignation’ had been used; and that Ms Thorley had raised in an email to Mr Costelloe of 9 November 2015 the possibility of him bringing a ‘dismissal dispute’ if he resigned. The Commissioner concluded that Ms Thorley responded to matters raised by Mr Costelloe, gave appropriate advice on those matters, and had not misdirected him.

[35] It is well established that findings of fact at first instance, based on the credibility of a witness, will only be set aside on appeal where incontrovertible facts or uncontested testimony show that the decision-maker’s conclusions are erroneous, or where the conclusions drawn are clearly improbable or contrary to compelling inferences. It does not appear to us Mr Costelloe’s contentions establish any arguable case that the Commissioner’s conclusions can be described in any of these ways.

[footnotes omitted]

[25] It is apparent from the decision of the Full Bench that the findings of fact in relation to the evidence of Ms Thorley in the August decision were not disturbed on appeal. It is also apparent, on the submissions and emails of Mr Costelloe in relation to the request for orders to produce phone records, that Mr Costelloe does not accept those findings of fact. Mr Costelloe’s application for production of documents goes directly to those findings. Having not succeeded in overturning the August decision on appeal, Mr Costelloe now seeks to challenge the findings therein in the determination of a costs application.

[26] The matter currently before the Commission for determination is, as is relevant to the request for orders, whether it should have been reasonably apparent to Mr Costelloe, particularly from the time after Ms Thorley gave her evidence, that his application had no reasonable prospect of success and whether it was an unreasonable act or omission of Mr Costelloe to not discontinue his proceedings once this evidence was known (on 5 June 2017) and hence whether an order for costs should be made. The matter before the Commission is not whether the phone call with Ms Thorley on 29 October 2015 took place or what the content of that call might have been. Those matters have been decided and the hearing of a costs application is not the time to seek to re-agitate them.

[27] To this extent the documents sought by Mr Costelloe, whilst they may have had relevance in the determination of the primary matter (that is the consideration of an extension of time within which to make his application), do not have any apparent relevance to whether Mr Costelloe engaged in an unreasonable act or omission or if it should have been reasonably apparent to Mr Costelloe that his application had no reasonable prospect of success.

[28] I do not consider that a denial of access to these records will deny Mr Costelloe natural justice in relation to the matter currently before the Commission for determination, that is, the costs application. To this extent Mr Costelloe’s reliance on the decision Hail Creek Coal is misplaced.

Conclusion

[29] A consideration of the facts and importantly the circumstances of the matter to be decided by the Commission are such that, for the reasons given above, the documents Mr Costelloe seeks (phone records) do not have any apparent relevance to the matter before the Commission – that is an application for costs pursuant to s.400A and s.611 of the FW Act.

[30] Mr Costelloe’s application for orders for the production of phone records of Ms Thorley is therefore refused.

[31] In light of this, and given that Ms Thorley was sought to be called to give evidence in relation to the phone records, the application to require Ms Thorley to attend is also refused.

COMMISSIONER

Appearances:

J. Costelloe on his own behalf.

E. Mentiplay for Origin Energy Resources Limited T/A Origin Energy.

Hearing details:

2017.

Melbourne and Brisbane (by telephone):

November 14.

 1 (2004) 143 IR 354.

 2   Ibid, 365-6.

 3   Print H2892 .

 4   Print P8680.

 5   [2017] FWCFB 5241.

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