Karl Peter Avis v Offshore Marine Services Pty Ltd & Maritime Union of Australia
[2010] FWA 7549
•30 SEPTEMBER 2010
[2010] FWA 7549 |
|
DECISION |
Fair Work Act 2009
s.372 - Application to deal with other contraventions
Karl Peter Avis
v
Offshore Marine Services Pty Ltd & Maritime Union of Australia
(C2010/2607)
COMMISSIONER MCKENNA | SYDNEY, 30 SEPTEMBER 2010 |
Application for a costs order.
[1] Karl Avis filed an application pursuant to s.372 of the Fair Work Act 2009 (“the Act”) alleging certain contraventions by Offshore Marine Services Pty Ltd (“OMS”) and the Maritime Union of Australia (“the MUA”). When the matter was listed initially, OMS and the MUA objected to participation in conference proceedings before Fair Work Australia. The circumstances are outlined in Karl Peter Avis v Maritime Services Pty Ltd & The Maritime Union of Australia[2010] FWA 4426 and need not be repeated here. It suffices to note that, having heard arguments for Mr Avis and OMS, I did not find in favour of an application for an order or relief made by Mr Avis.
[2] Consequent upon the issuing of that decision, OMS’s solicitors, Jarman McKenna, subsequently gave notice of an application for costs.
[3] In the hearing concerning costs, after outlining a chronology of events and written communications between the parties concerning jurisdictional issues and matters related to costs, the submissions for OMS encapsulated its costs application as follows:
“14. OMS seeks costs against the Applicant, his solicitors, or both, pursuant to sections 376 and 611 of the FW Act, because:
a. the jurisdiction application had no reasonable prospect of success and this should have been reasonably apparent to the Applicant’s solicitors;
b. the continued pursuit of the jurisdiction application beyond 8 March 2010 was unreasonable and resulted in costs being incurred unnecessarily;
c. given the availability of the Federal Court jurisdiction in which the Applicant could pursue a remedy, there was no reasonable cause for the Applicant to persist with his jurisdiction application; and
d. in light of the clear and unambiguous language of section 374 of the FW Act, the Applicant’s jurisdiction application was vexatious.”
[4] The submissions on behalf of Mr Avis and his solicitors, Harmers Workplace Lawyers (“Harmers”), contended OMS had provided no evidence or reasonable basis to grant the costs order.
[5] As to costs, s.611 of the Act read as follows:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 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).”
[6] Further, s.376 of the Act reads:
“Subdivision C—Conference costs
376 Costs orders against lawyers and paid agents
(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in relation to an application under section 365 or 372, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid agent caused costs to be incurred by another party to the dispute because the lawyer or paid agent encouraged the person to make the application; and
(ii) it should have been reasonably apparent that the application would have no reasonable prospect of success; or
(b) that the lawyer or paid agent caused costs to be incurred by another party to the dispute because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the dispute.
(2) FWA may make an order under this section only if the other party has applied for it under section 377.
(3) This section does not limit FWA’s power to order costs under section 611.”
[7] The general legislative position concerning costs is that parties bear their own costs, subject to the particular exceptions specified in s.611 and s.376.
[8] It may be noted that submissions concerning jurisdictional contentions in response to the initial objection to conference participation were filed for Mr Avis on 16 February 2010. However, the actual application seeking an order or relief was filed on the later date of 15 March 2010, this being the jurisdictional application which was the subject of hearing and determination. In this respect, I accept Harmer’s submissions concerning the delineation between the substantive application and the jurisdictional application.
[9] OMS’s first, second and fourth grounds in support of the costs application were advanced on the bases there were no reasonable prospects of success on the jurisdictional position; that this should have been reasonably apparent to Mr Avis’s solicitors; that pursuing the matter following correspondence dated 8 March 2010 was unreasonable and resulted in unnecessary costs; and was also vexatious, given the clear and unambiguous wording of s.374 of the Act.
[10] Given the way the proceedings unfolded, there was insufficient information before Fair Work Australia to form a view about matters such as whether the substantive application was made vexatiously or without reasonable cause; or it was reasonably apparent there was no reasonable prospect of success. As to the jurisdictional application, it could not be said that the jurisdictional position advanced for Mr Avis had no reasonable prospect of success, or that it was, for example, manifestly untenable or groundless. While I did not find in favour of the submissions advanced on behalf of Mr Avis in the earlier decision, a developed, arguable position was put by Harmers - based on matters including the interaction of different sections of the Act, notes to sections of the Act, the legislative objects, aspects of the Explanatory Memorandum and authorities. The Act is still comparatively new and the jurisdictional issues raised apparently have not been considered previously by Fair Work Australia. As such, the making of the jurisdictional argument did not manifest some disregard of, for example, clearly established precedent or principles. Further, I do not consider Mr Avis’s jurisdictional application could be characterised as vexatious, considered in the context of the authorities to which reference was made, or that there was an unreasonable act or omission by Harmers through conduct or continuation.
[11] OMS submitted, as its third ground, that, given the availability of court proceedings, there was no reasonable cause to persist in proceedings before Fair Work Australia. In this respect, I have considered the submissions for Mr Avis about wanting to endeavour to resolve the substantive application before Fair Work Australia, so as - not unreasonably - to attempt to avoid the costs of “immediately escalating” to court litigation.
[12] Having considered the matters relied on by the parties, I do not consider an order for costs would be properly-founded having regard to the legislative stipulations as to the particular circumstances when costs may be ordered; I have not been satisfied such circumstances exist in this case. In any event, I would not, in the exercise of discretion, consider it appropriate to make an order for costs concerning either Mr Avis or his solicitors given the nature of the jurisdictional application, the arguments advanced in its support, and the respective contentions generally concerning the costs application.
[13] Having regard to the foregoing, I decline to make the order for costs sought by OMS. I also decline to accede to the application made in Mr Avis’s/Harmers’ submissions that OMS should be ordered to bear Mr Avis’s costs in relation to OMS’s costs application. I note Mr Avis has filed a notice of discontinuance. Given my findings concerning the extant costs applications and given also the filing of the notice of discontinuance, the proceedings are now concluded.
COMMISSIONER
Appearances:
D.Markovich, solicitor, Jarman McKenna - for Offshore Marine Services Pty Ltd
L. Maclou, solicitor, Harmers Workplace Lawyers - for Karl Avis
Hearing details:
Sydney
2010
September 14.
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