Joyce Noronha-Barrett v Australian National University
[2015] FWCFB 7958
•26 NOVEMBER 2015
| [2015] FWCFB 7958 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australian National University
(C2015/6086)
VICE PRESIDENT WATSON | MELBOURNE, 26 NOVEMBER 2015 |
Application for costs – whether application made vexatiously or without reasonable cause – whether unreasonable act or omission – Fair Work Act 2009 – ss.375B, 604 and 611.
[1] This decision concerns an application for costs made by the Australian National University (ANU) against Ms Joyce Noronha-Barrett arising from an application for permission to appeal that was listed for hearing before this Full Bench on 28 October 2015. Ms Noronha-Barrett sought permission to appeal against the decision of Deputy President Kovacic handed down on 25 August 2015. 1 The appeal was discontinued by Ms Noronha-Barrett on 26 October 2015.
[2] After Ms Noronha-Barrett filed a Notice of Discontinuance on 26 October 2015, the ANU filed an application for costs pursuant to s.375B and s.611 of the Fair Work Act 2009 (the Act). Directions were issued for the filing of written submissions by both parties on the basis that the costs application would be determined on the papers.
Background
[3] On 2 April 2015 Ms Noronha-Barrett made an application under s.365 of the Act for the Commission to deal with a general protections dispute involving a dismissal. The application was lodged six days outside of the statutory time limit. The reason for the delay advanced by Ms Noronha-Barrett was that she pursuing an application in the Federal Court. The Federal Court application had commenced prior to the termination of her employment. When she sought to include the termination of her employment in the Federal Court proceeding, the ANU raised a jurisdictional objection and she then made an application to the Commission.
[4] Deputy President Kovacic determined the matter based on the written submissions of the parties and issued a decision on 25 August 2015. The Deputy President found that there were no exceptional circumstances warranting the granting of a further period for the making of the s.365 application and ordered that the application be dismissed. 2
[5] On 15 September 2015 Ms Noronha-Barrett lodged a Notice of Appeal in which she contended that the original decision contains errors of fact. In particular, Ms Noronha-Barrett contended that the Deputy President made an error of fact in finding that the reasons for the delay cited do not support a finding that there were exceptional circumstances. Ms Noronha-Barrett submitted that there was a genuine reason for the delay and specified the reasons why she believes there are exceptional circumstances.
[6] Further, Ms Noronha-Barrett submitted that it is an error of fact that the reason for the delay in lodgement is because she preferred to remain in the Federal Court to the exclusion of the Fair Work Commission. Ms Noronha-Barrett submitted that this is incorrect because she was advised that she could be heard in only one jurisdiction until either the Federal Court matter ended or she was referred by the Federal Court to the Commission.
[7] In her Notice of Appeal, Ms Noronha-Barrett also contended in that it is in the public interest to grant permission to appeal as more clarity is needed regarding how cases in multiple jurisdictions can operate, and there should be transparency in the way in which the ANU carries out its employer obligations given that it is a public institution.
[8] The matter was listed for hearing on whether permission to appeal should be granted on 28 October 2015. Directions were issued for Ms Noronha-Barrett to file an outline of written submissions by 20 October 2015. At her request, an extension was granted for her to file written submissions on 26 October 2015.
[9] The applicant filed a Notice of Discontinuance on 26 October 2015.
Legislation
[10] The power to make an order for costs is dealt with in s.611 of the Act which 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.
Note: The FWC can also order costs under sections 376, 400A, 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).”
[11] Section 375B of the Act provides:
“375B Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC’s power to order costs under section 611.”
[12] It is well established that an order for costs is a discretionary matter when the basis for making a costs order is established. Section 611 contains a number of separate bases for granting an order for costs. An application has been held to be made without reasonable cause if it is so untenable that it cannot possibly succeed. 3
Should an order for costs be made?
[13] The ANU submits that there were no grounds for making the application to appeal as neither of the two errors of fact cited by the Ms Noronha-Barrett were errors of fact. Accordingly, the ANU submits that Ms Noronha-Barrett’s application for permission to appeal had no reasonable prospects of success. The ANU further submits that the application to appeal was an unreasonable act and it has caused the ANU to incur costs through its legal representatives in respect of the appeal.
[14] The ANU also submits that the fact that the appeal was discontinued two days before it was due to be heard is further evidence that the appeal had no prospects of success. 4
[15] Ms Noronha-Barrett submits that she sincerely believed her application for permission to appeal had merit and that it would have been in the public interest to allow the appeal. The reasons Ms Noronha-Barrett discontinued the appeal were her financial position to continue to pay costs in relation to legal representation, and she was not in a position to represent herself at the hearing due to the state of her mental health. Accordingly, Ms Noronha-Barrett submits that the Commission should not grant the ANU’s application for costs.
[16] There are a number of unusual features of this matter. Ms Noronha-Barrett was involved in litigation before the Federal Court at the time she was dismissed. She has submitted that the costs and emotional damage of the conflict with the ANU and the litigation have taken a toll on her mental health. Medical information as to her condition has been submitted. Because of the cost impact, she determined to represent herself in the appeal against the decision of Deputy President Kovacic. Then the emotional impact of the matters led her to discontinue the appeal before the hearing as she felt unable to present her case. At the time the Federal Court proceedings were ongoing as were settlement discussions regarding the overall controversy. She states that she was under the genuine impression that she could not take action in two jurisdictions until approved by the Federal Court and she did so when the Federal Court directed her to take the matter to the Commission. By that time the time limit for lodging a s.365 application had expired. Ms Noronha-Barrett was not able to persuade Deputy President Kovacic that exceptional circumstances existed to justify an extension of time. Nevertheless she considered that her actions were appropriate and reasonable at all times and she felt severely disadvantaged in not being able to expand her Federal Court action to cover the termination of her employment.
[17] In our view the circumstances of this matter do not support a finding that the application for permission to appeal was made vexatiously or without reasonable cause. Further, we are not persuaded that costs were incurred because of an unreasonable act or omission.
Conclusion
[18] Given the above conclusions the application for an order for the payment of costs is dismissed.
VICE PRESIDENT
Final written submissions:
Australian National University on 27 October 2015.
Ms Noronha-Barrett on 11 November 2015.
Australian National University in reply on 18 November 2015.
1 [2015] FWC 5879.
2 [2015] FWC 5879 and PR571204.
3 General Steel Industries Inc v Commissioner for Railways (NSW) (1964)112 CLR 125.
4 See Imogen Pty Ltd v Sangwin (1996) 70 IR 254 per Ryan J at 261 and 262.
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