Kelvin Gorrie v Greensphere Pty Ltd T/A Multihull Solutions - [2022] FWC 1327

[2022] FWC 1327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kelvin Gorrie
v

Greensphere Pty Ltd T/A Multihull Solutions

(U2021/3478)

COMMISSIONER SIMPSON

BRISBANE, 27 MAY 2022

Application for costs pursuant to ss.400A and 401 of the Fair Work Act 2009 against Applicant in Unfair Dismissal case and their representative - costs awarded against Second Costs Respondent.

Greensphere Pty Ltd T/A Multihull Solutions (Multihull/ the Costs Applicant) made an application to the Fair Work Commission (the Commission) seeking an order for costs against Mr Kelvin Gorrie (Mr Gorrie/ the First Costs Respondent) and Ms Sue Cordelle (Ms Cordelle/ the Second Costs Respondent) pursuant to ss.400A and 401 of the Fair Work Act 2009 (the Act).

The application is made in the context of an unfair dismissal application made under s.394 of the Act by Mr Gorrie on 22 April 2021. On 6 May 2021, Multihull filed a Form F3 – Employer Response where it objected to the application on the jurisdictional ground that Mr Gorrie was not an employee of Multihull and was on a contracting arrangement through the entity K&T Gorrie Family Trust t/as Shine Up (the Family Trust). The matter was listed for jurisdictional hearing before me on 7 and 8 July 2021. The jurisdictional hearing was adjourned several times until 22 October 2021 when Mr Gorrie discontinued his unfair dismissal application.

Ms Cordelle was Mr Gorrie’s second representative during the life of the unfair dismissal application, particularly from 5 July 2021 to 16 September 2021 when Aquila Law became Mr Gorrie’s third representative. I note that for the purposes of this costs application, Mr Gorrie is represented by Kilmartin Knyvett Lawyers.

Directions were issued on 13 January 2022 requiring parties to file material in respect of the cost application. The matter was listed for hearing, by telephone, on 15 February 2022. The directions were amended on 31 January 2022 granting an extension requested by Ms Cordelle, and the costs application was ultimately heard on 9 March 2022.

The Costs Applicant was represented at the hearing by Ms Brooks of Counsel instructed by Ms Chalk of Aitken Law, the First Costs Respondent was represented by Ms Forrest of Counsel instructed by Ms Kilmartin of Kilmartin Knyvett Lawyers, and the Second Costs Respondent Ms Cordelle represented herself. The parties were granted leave to be represented.

All parties indicated that none of the witnesses would be required for cross examination, and consequently, the statements filed were admitted into evidence. The Costs Applicant relied on the Affidavits of Mr Christopher Campbell of 5 November 2021,[1] and 14 February 2022,[2] as well as its written submissions of 5 November 2021 and reply submissions of 14 February 2022. The First Costs Respondent relied on the Affidavits of Mr Kevin Gorrie of 24 January 2022,[3] and 25 February 2022,[4] as well as their written submissions of 24 January 2022. The Second Costs Respondent relied on a statement of Ms Sue Cordelle of 8 February 2022,[5] and a further statement of 4 March 2022[6] and written submissions of 9 February 2022. Further material was filed after the conclusion of the hearing in relation to a dispute concerning the admissibility of certain material objected to on the basis of legal professional privilege.

LEGAL PROFESSIONAL PRIVILEGE

The First Costs Respondent objected to parts of Ms Cordelle’s second statement of 4 March 2022 on the basis of legal professional privilege. This included the following:

(a)Paragraph 10 and 11 and Annexure SC130;

(b)Paragraph 80 and Annexures SC135 and SC136;
(c)Paragraphs 110 and 111 and Annexure SC131; and

(d)Paragraphs 28, 29, 31, 33 – 36, 61 and 85.

The First Costs Respondent and Second Costs Respondent were given an opportunity to file written submissions regarding their competing contentions concerning legal professional privilege. The First Costs Respondent said each of its objections related to legal advice from Ms Inke Loos (Ms Loos) to Mr Gorrie. The First Costs Respondent said that paragraphs 10 and 11 and Annexure SC-130, and paragraphs 110 and 111 and Annexure SC 131 refer to and attach voice recordings of conversations between Mr Gorrie and his lawyer (at the time) Ms Loos, while Ms Cordelle was present. The recordings were obtained in the context of a conference between Ms Loos, Mr Gorrie and Ms Cordelle and for that reason, the First Costs Respondent claims legal professional privilege over each of the recordings and that is not privilege that Ms Cordelle can waive on Mr Gorrie behalf.

The First Costs Respondent submitted that paragraph 80 and Annexures SC 135 and SC 136 refer to and attach text messages from Ms Loos to Ms Cordelle about Mr Gorrie’s Unfair Dismissal claim.

The First Costs Respondent further submitted that paragraphs 28, 29, 31, 33-36, 61 and 85 refer to advice from Ms Loos to Mr Gorrie about his unfair dismissal claim. The Costs First Respondent submits the following arguments.

The First Costs Respondent contended firstly, the legal professional privilege that attaches to the privileged paragraphs is not Ms Cordelle’s to waive, but instead, the privilege rests with Mr Gorrie and he has not waived privilege expressly or impliedly.

Secondly, not one of the circumstances which would indicate that Mr Gorrie has waived privilege arises on Ms Cordelle’s material.

It is accepted that Ms Cordelle is not a legal practitioner, and that legal professional privilege does not attach to advice from Ms Cordelle to Mr Gorrie. However, the evidence is that Ms Cordelle was, for a time, engaged as Mr Gorrie’s paid agent in relation to his unfair dismissal claim. Prior to this time, she was assisting the lawyer Mr Gorrie had engaged in relation to the unfair dismissal claim. Consequently, in the context of the arrangement, any advice given by Ms Loos to Mr Gorrie (including any advice given by Ms Loos to Mr Gorrie through Ms Cordelle) was to remain confidential between Ms Loos, Mr Gorrie and Ms Cordelle and was properly subject to legal professional privilege.

Concerning the list of annexures filed by Ms Cordelle, and Ms Cordelle’s claim that Mr Gorrie had waived legal professional privilege by his own disclosure of legal advice, the First Costs Respondent submits;

(a) In Mr Gorrie’s evidence, the only references to legal advice he received are contained at:

(i)Paragraph 9 of his affidavit dated 24 January 2022 where he says, “I did not accept the offer at the time because I did not think it was fair offer. My solicitor at the time, Inke Loos from Leora Rose Law did not seem to think I should accept the offer. Ms Inke sent me an email providing me with the offer and advising me that Multihull was essentially offering me nothing, only that each party pay their own costs and that she would keep working on my submissions and statements.”

(ii)In KG-22 attached to Mr Gorrie’s affidavit dated 24 January 2022, it states, “Whilst our client maintains the position set out in the submissions made thus far, our client has received advice that it is more commercially viable for him to recover his legal entitlements directly through alternative jurisdictions such as the Australian Taxation officer (“ATO”) and the Federal Circuit Court and Family Court of Australia or Queensland Industrial Relations Commission (whichever is more financially viable for our client)”;

(iii)Paragraph 51 of his affidavit dated 24 January 2022 where he says, “I did not discontinue my claim because I thought my cause was hopeless. In fact, I was advised that there were other jurisdictions in which I could commence a claim if I wanted to”.

(iv)Paragraph 54 of his affidavit dated 24 January 2022 where he says, “I was advised by Ms Cordelle and Ascendia Lawyers and Leora Rose Law that I had a good case which had great prospects”.

(b) Apart from the advice referred to above Mr Gorrie did not summarise or attach any correspondence that contains legal advice in his affidavits because he did not intend to waive legal professional privilege in relation to the other legal advice;

(c)   At paragraph 52 of his affidavit dated 24 January 2022, Mr Gorrie says, “I am aware that Aquilla Law were never able to obtain a complete copy of the file for the UD claim from Ms Cordelle. Generally, this created issues and caused delays with the progression of my matter after I engaged Aquilla Law around 16 September 2021.” Mr Gorrie submitted in this same affidavit that “KG 34 is a copy of an email from Ms Cordelle to Sarah Mouritz of Aquila Law (sent around early November 2021) where Ms Cordelle refuses to send Ms Mouritz all of the documents in her possession in relation to my UD claim”. The First Costs Respondent submitted that as this paragraph relates to administrative matters and annexure KG 34 is an email from Ms Cordelle to Ms Mouritz, neither the paragraph nor the annexure contain legal advice. It is not submitted by Mr Gorrie that either the paragraph or the annexure are covered by legal professional privilege;
(d)   Where Mr Gorrie has attached emails sent from Ms Cordelle to Mr Gorrie which were also copied to Ms Loos, LLP does not attach to these emails because Ms Cordelle is not a legal practitioner;
(e)   The only advice over which Mr Gorrie waived LLP in these costs proceedings is outlined above in reference to paragraph 9, 51 and 54 and annexures KG 1, KG 22 and KG 33 of his 24 January affidavit.

The First Costs Respondent further submitted that Ms Cordelle has not demonstrated the privileged paragraphs were communications made for the purpose of facilitating illegal or improper purposes and therefore privilege continues to attach to them.

The First Costs Respondent submitted that Ms Cordelle has not shown that Mr Gorrie has out the contents of the privileged paragraphs in issue in the costs application and therefore the privilege is not waived.

On this basis, the First Costs Respondent maintains the legal advice from Ms Loos to Mr Gorrie means the entire paragraphs should be struck out and removed. In the alternative, the First Costs Respondent submitted that if the Commission is not satisfied that LPP applies in relation to any of the privileged paragraphs in their entirety;

(a) Paragraph 10 and 11 and Annexure SC 130 are provided by Ms Cordelle without explaining the context or the date the recording was made and as a result little weight ought be applied to their contents;

(b)   In relation to paragraph 80 and Annexures SC 135 and SC 136, if the Commission is not minded to strike out the entirety of this paragraph and the annexures, the Commission ought to at least strike out the text messages from Ms Loos to Ms Cordelle as LLP clearly attaches to them and was not waived. Alternatively, paragraph 80 and Annexures SC 135 and SC 136 are also provided with little context, for example, it is not clear what “the offer” that Ms Cordelle refer to is, nor the “orig offer” Ms Loos refers to. As a result, little weight ought to be applied to their contents.
(c)   Paragraphs 110 and 111 and Exhibit SC 131 are provided by Ms Cordelle without explaining the context or the date the recording was made and as a result little weight ought to be applied to their contents;
(d)   In relation to paragraphs 28, 29, 31, 33-36, 61 and 85, if the Commission is not minded to strike out the entirety of each paragraph, the Commission ought to strike out the relevant part of each of these paragraphs that refers to legal advice from Ms Loos to Mr Gorrie as LPP clearly attaches and was not waived. Alternatively little weight ought to be applied to the contents of these paragraphs given that Ms Cordelle has not provided any documentary evidence to support her contention that the legal advice described in these paragraphs was provided by Ms Loos to Mr Gorrie

The First Costs Respondent also objected on the basis of relevance, not being responsive to any of Mr Gorrie’s statements and that they are irrelevant to the matters before the Commission. They also include attempts to make submissions through the statement. The First Costs Respondent submitted if they are not struck out, then it was submitted that those parts of the statement should be afforded little or no weight in the matter. These included:

·   Paragraph 2 to 5
·   Paragraph 6
·   Paragraph 3 to 37
·   Paragraph 44 to 37
·   Paragraph 90 to 91
·   Paragraph 93
·   Paragraph 96 to 98
·   Paragraph 100
·   Paragraph 108 to 112
·   Paragraph 113 including exhibit SC 132.

Mr Gorrie also objected to the assertions made by Ms Cordelle in the “Communication Detail” column of lines 24, 25 and 26 of the “Annexures” document Ms Cordelle filed on Friday 11 March 2022 being allowed into evidence. The First Costs Respondent submitted that if Ms Cordelle wanted to make further claims about “false” and “manufactured” evidence she had the opportunity to put on evidence in support of those claims prior to 10 March 2022 however she did not, and it would be prejudicial to Mr Gorrie if these unsupported assertions, made via submissions, were allowed into evidence.

Ms Cordelle did not accept that the material for which Mr Gorrie claimed LPP were privileged, and they were discussions including herself. Ms Cordelle also submitted that Mr Gorrie has waived his privilege.

Ms Cordelle submitted that Mr Gorrie is attempting to claim LPP over information on which he relies. It is submitted that Mr Gorrie seeks to strike out submissions and evidence of the same substance matter on which he relies, and which is clearly in contest.

Ms Cordelle submitted that Mr Gorrie wants to ‘cherry pick’ what is permissible for the Commission to consider, while at the same time relying on the information withheld to justify and defend his conduct.

It is submitted that Mr Gorrie acted in a way that is plainly inconsistent with maintaining privilege, such that it manifests an objective intention to abandon the LPP. It is submitted that Mr Gorrie disclosed that he received legal advice and furthermore that he intentionally disclosed the substance of that alleged advice as is in evidence before the Commission.

It is submitted that both an expressed and implied waiver has occurred. Mr Gorrie submitted that the inclusion of a lawyer in a communication does not of itself satisfy the dominant purpose test required to establish LPP.

Ms Cordelle submitted that Mr Gorrie has waived privilege on account of the following that has occurred and is in evidence before the Commission:

(a) "disclosure waiver" – Mr Gorrie has waived the whole advice as the substance, gist and conclusion was disclosed both in these proceedings and to other parties;

(b) "issue waiver" – Mr Gorrie has waived any LPP right to the information which forms the basis of his case and or is an assertion made in his submissions and evidence; as he has put the content of alleged LPP communications in issue in these legal proceedings, alleging a purported state of mind in relation to his conduct (inter alia refusing to discontinue).
(c) "associated material waiver" – Mr Gorrie has waived alleged LPP material, as the material is relevant to the same issue or subject matter as he has disclosed in evidence before the Commission.

Ms Cordelle submitted that Mr Gorrie waived LPP in many of the communications he submitted to the Commission (inter alia text messages, emails, alleged oral exchanges) and it is permissible for other related communications to be disclosed as a result.

It was submitted by Ms Cordelle that because Mr Gorrie relies on his state of mind concerning legal advice received as part of his defence, including advice from Ms Cordelle, he has waived legal professional privilege for that reason and his conduct is inconsistent with the maintenance of privilege. Ms Cordelle submitted it would be unfair for only one party to be permitted to file material in relation to the issue concerning Mr Gorrie’s state of mind concerning the legal advice he received and not the other party.

Ms Cordelle further submitted that Mr Gorrie clearly alleged in his defence that he acted as he did based on the advice he received from Ms Loos, Aquila Law, Ms Cordelle, and Ms Mauritz, claiming the 'alleged advice' was that he had a great case with good prospects and on that basis he continued with the action, even when he alleges he personally wanted to discontinue it.

Having considered the competing submissions, I am satisfied the First Costs Respondent has waived his right to LPP in relation to the material objected to on the basis that his own case relies on his claimed state of mind in relation to legal advice received including various communications with Ms Loos and his subsequent legal practitioner. I have taken into accountant the submissions in relation to weight as made for the Second Costs Respondent.

COST APPLICATION

On 5 November 2021, Mr Christopher Campbell of Aitken Legal, the representative of Multihull (Mr Campbell) lodged a Form F6 applying for costs in the amount of $100,915.88, with an additional estimate of hearing the costs application in the amount of $7,216. The costs application was made against Mr Gorrie and Ms Cordelle (collectively referred to as the Costs Respondents) on the following grounds:

· Mr Gorrie acting unreasonably and caused Multihull to expend costs by:

· Ground 1: unreasonably not withdrawing the unfair dismissal claim after Multihull’s without prejudice offers on 28 June 2021 and/or 7 July 2021.

· Ground 2: contesting a production order sought by Multihull in respect of various tax and invoice records relating to the Family Trust.

· Ground 3: failing to comply with the production order that was granted in respect of those documents.

· Ground 4: forcing Multihull to seek production orders against the Family Trust’s external accountants, being Vision Accounting Services and Ascendia Accountants, to seek to obtain those relevant documents.

· Ground 5: failing to discontinue Mr Gorrie’s claim once it was apparent that the records sought by Multihull would undermine the foundations of the unfair dismissal application.

· Ms Cordelle was complicit as Mr Gorrie’s representative in at least two aspects of Mr Gorrie’s unreasonableness by:

· Ground 6: failing to properly advise Mr Gorrie as to the prospects of Multihull’s application for an order for production.

· Ground 7: once Mr Gorrie failed to comply with the First Production Order, failing to properly advise Mr Gorrie as to how his conduct critically undermined his claim.

Further submissions for the Costs Applicant identified the above issue as the grounds for the costs, however submissions in reply in respect of Mr Gorrie appear to press four rather than five grounds. I have proceeded on the basis that there are five grounds pressed against Mr Gorrie and the fourth ground incorporates the issue of the failure to comply with the second set of productions orders. I have sought to deal with all the arguments put on that basis.

Multihull’s application for costs against Mr Gorrie was made pursuant to s.400A of the Act, which provides:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if 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 matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

Further, the application for costs against Ms Cordelle was made pursuant to s.401 of the Act, which stipulates as follows:

“401 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair dismissal remedy has been made under section 394; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

Sections 400A, 401(1) and 401(1A) were inserted into the Act by the Fair Work Amendment Act 2012. In relation to them, the Explanatory Memorandum for the Fair Work Bill 2012 outlined the following:

“The amendments strike a balance between the need to protect workers from unfair dismissal, and to provide a deterrent against unreasonable conduct during proceedings. The amendments will enable costs orders to be more easily made in the case of unreasonable conduct but will not prevent genuine claims from being pursued. They will discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner. These measures are reasonable and proportionate to address the time and expense that an unreasonable conduct by a participant and/or their representative may cause another party to incur.”.

“180. New subsections 401(1) and 401(1A) will provide a stronger deterrent for lawyers and paid agents from encouraging parties to bring or continue speculative unfair dismissal claims, particularly claims they know have no reasonable prospect of success. The provision will also deter lawyers or paid agents from unreasonably encouraging a party to defend a claim or make a jurisdictional argument where there is no prospect of the argument succeeding. It will act as a stronger deterrent than the current provision as it will make lawyers and paid agents subject to the possibility of adverse costs orders even if they are not granted, or do not seek, permission to represent the party in the matter before the FWC”; and

“184. An example of where the FWC may award costs against a representative under new item 401(1A) is where the representative knows that his or her client’s unfair dismissal claim is dishonest or without foundation but still actively encourages them to proceed with the claim to try and extract a remedy such as a financial settlement from the employer”.

Deputy President Clancy in the recent matter of Yarra City Council v Rubicon Compensation Lawyers[7] said as follows:

“[7] In considering s.401 of the Act, the Full Bench in Sharkey v Life Without Barriers was guided by the principles outlined in Barkhazen v Conair Australia Pty Ltd (No 2), in which Justice Bromwich found that the Federal Court’s power to make a costs order against a lawyer is well established and opined that it is a power that must be exercised with care and discretion and only in a clear case. His Honour went onto say:

“The relevant principles were helpfully summarised by Wigney J in Mitry Lawyers at [44] as follows:

1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.

2. Something which involves “unreasonable conduct” is required.

3. What constitutes unreasonable conduct will depend on the circumstances of the particular case.

4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.

5. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.

6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.

7. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.”

CHRONLOGY OF THE UNFAIR DISMISSAL APPLICATION

Whilst this decision concerns whether an order for costs be made against Mr Gorrie and Ms Cordelle, the history of the unfair dismissal application is relevant for my consideration based on the Costs Applicant’s seven grounds. This includes the events that occurred before the Commission and externally between the parties.

Mr Gorrie commenced working at Multihull on 15 March 2013, engaged as a Sales Consultant. His engagement with Multihull ended on 1 April 2021, where he was allegedly advised that he was no longer to be engaged by Multihull for his failure to sign a new Contractor Agreement. This led to Mr Gorrie filing an application for remedy for an unfair dismissal application pursuant to s.394 of the Act on 22 April 2021. It was Mr Gorrie’s expressed view that despite being called a “Contractor” by Multihull, he had been treated as an employee consistently and continually since 2013. As stated before, Multihull brought a jurisdictional objection to the unfair dismissal application on the basis that Mr Gorrie was never its employee. Rather, Multihull contended that Mr Gorrie provided services through his Family Trust as part of an independent contracting arrangement.

The matter was not listed for conciliation before a Staff Conciliator based on Multihull’s request that it wished to proceed straight to hearing. The matter was allocated to me on 11 May 2021. Following allocation, I listed the matter for Directions on 20 May 2021, which was later relisted to 26 May 2021. On 28 May 2021, I issued directions requiring the filing of material by the parties and I listed the matter for jurisdictional hearing on 7 and 8 July 2021.

The Costs Applicant filed its material in support of their jurisdictional objection on 18 June 2021, with additional materials filed past the due date on 21 June 2021. In its submissions, the Costs Applicant argued that Mr Gorrie provided services through his Family Trust, and that the Family Trust also provided services to boat owners to place insurances for them and entered into direct management with those owners for insurance purposes. According to Multihull, those services were different to that Mr Gorrie provided to Multihull, where he earned a commission on the sale of boats. Amongst other matters, the Costs Applicant also relied on the fact that the Family Trust was contracted with the Costs Applicant for cleaning services by Mr Gorrie’s wife, Mrs Tiffeny Gorrie (Mrs Gorrie) and asserted that Mr Gorrie was not prohibited from providing various services to entities other than the Costs Applicant.

On 23 June 2021, Mr Gorrie’s representative at the time, Ms Inke Loos of Leora Rose Law (Ms Loos), sought an extension of one week for the filing of written submissions due to the volume of evidence filed by the Costs Applicant, the need to review new evidence, and Mr Gorrie suffering from a medical issue which limited his ability to provide instructions. I granted the extension, providing Mr Gorrie until 2 July 2021 to file his material and I relisted the jurisdictional hearing to 22 and 23 July 2021.

On 28 June 2021, the Costs Applicant, through its representative, sent ‘Without Prejudice’ correspondence to Ms Loos. An offer was made on terms which invited Mr Gorrie to discontinue his claim on the basis that each party would bear their own costs (the First WP Letter). The correspondence made clear that the Costs Applicant would seek to rely on the correspondence on the question of costs should Mr Gorrie continue with his claim and Mr Gorrie was given until 4:00pm on Wednesday, 30 June 2021 to accept the offer.

On 2 July 2021, Ms Loos sent an email to my chambers advising they were unable to obtain instructions from Mr Gorrie. On 4 July 2021, Ms Cordelle filed in the Commission a Form F53 notifying that she was Mr Gorrie’s new representative. A Form F54 notice ceasing to act was also filed for Leora Rose Law. Ms Cordelle confirmed over the phone that Leora Rose Law was no longer acting for Mr Gorrie. This was confirmed in an email sent shortly after in which she sought an extension until 9 July 2021 for the filing of Mr Gorrie’s material in response to the jurisdictional objection. I granted the extension and also extended the time for the Costs Applicant filing its material in reply until 16 July 2021.

On or around 5 July 2021, Mr Campbell advised that he forwarded his First WP Letter to Ms Cordelle and asked that she confirm that she would seek instructions in respect of that correspondence, which Ms Cordelle advised she would. On 7 July 2021, Mr Campbell sent another without prejudice letter to Ms Cordelle, which contained substantially the same terms and invited Mr Gorrie to discontinue his claim by 9 July 2021 (the Second WP Letter). Mr Campbell advised that he did this out of an abundance of caution as it was not clear to him whether Ms Loos had passed on the First WP Letter to Mr Gorrie. Mr Campbell advised that no response was received.

The First Cost Respondent’s material was filed on 9 July 2021. It is noted that Mr Gorrie asserted in the course of the unfair dismissal application, as summarised by the Costs Applicant in their submissions, that:

· Mr Gorrie was not permitted to work for any other client or as a broker for any other customers or businesses;

· Mr Gorrie was effectively, and at all times, a full time Sales Consultant for Multihull in a role where reaching the sales targets set by Multihull was full time hard work;

· Mr Gorrie only began his own independent brokering business in the boat industry after the termination of his employment with Multihull;

· Although Mr Gorrie’s wife has also provided services to Multihull through the Family Trust, those were extremely limited cleaning services, and resulted in Mr Gorrie earning approximately $1,500 in the eight years that Mr Gorrie worked with Multihull;

· The income from his wife’s endeavours were otherwise ‘minimal’, with Mrs Gorrie becoming the primary carer of their two young children;

· Mr Gorrie’s wife’s minimal cleaning business became Multihull’s front for the sham contract;

· Multihull sought to avoid its obligation to the ATO, and dishonestly misrepresented and manipulated Mr Gorrie in the sense that it forced a hybrid relationship between them for their unjust enrichment at Mr Gorrie’s expense; and

· Mr Gorrie was coerced into a sham contractor’s agreement with Multihull, and that Mr Gorrie had no effective choice as to whether or not to provide services to Multihull through the Family Trust.

It is noted that Multihull provided evidence, through Mr Elkington, denying the allegations by Mr Gorrie regarding coercion where Mr Elkington said that he had a number of discussions initiated by Mr Gorrie where he would refer to the benefit of the Family Trust in tax minimisation and how little he paid tax.

Following the filing of Mr Gorrie’s material, Multihull wrote to Ms Cordelle seeking the production of documents in an email sent on 13 July 2021. The email is extracted below:

“Dear Colleague

OUR CLIENT: GREENSPHERE PTY LTD T/AS MULTIHULL SOLUTIONS
YOUR CLIENT: KELVIN GORRIE
FAIR WORK COMMISSION MATTER NUMBER: U2021/3478
DOCUMENT PRODUCTION

We refer to this matter which is listed for hearing on 22 and 23 July 2021. As we indicated at an earlier directions mention, our client requires documents produced by your client for the hearing (and prior to that hearing taking place). We have outlined the documents to be produced and for production on or before 5pm Friday 16 July 2021.

Now that the parties have exchanged statements and submissions (subject to the final direction applicable to our client) we have been in a position to examine the scope of the documents required for production. It is also to be noted that the scope of the majority of these documents was mentioned previously in communications to your client’s previous representative. They are and relate to the business and taxation records of the Trust, your client, Mr Gorrie, as well as his partner, Tiffeny Gorrie and his son, Nicholas Gorrie.

As such, we ask for the production of the following:

1.   All income tax returns of the entity the Trustee for the K&T Gorrie Family Trust (‘the Trust’) for the financial years ended 30 June 2011 to 30 June 2021;
2.   All income tax returns of the Applicant, Kelvin Gorrie for the financial years ended 30 June 2011 to 30 June 2021;
3.   All income tax returns of Tiffeny Gorrie for the financial years ended 30 June 2011 to 30 June 2021;
4.   All income tax returns of Nicholas Gorrie;
5.   All invoices issued by the Trust for all services provided to any entities outside of the Respondent (and since 14 March 2013);
6.   A copy of the Trust Deed of the Trust;
7.   A copy of any contractual document between Kelvin Gorrie and/or the Trust and the entity Rovacraft;
8.   A copy of all Invoices issued by the Trust since 6 April 2021;
9.   A copy of any diary held by the Applicant and/or the Trust since 14 March 2013 (the diary or diaries to be produced to the Commission on the hearing.)

The documents can be produced to us by copies being sent by email to the writer’s email address.

Please reply by 4pm Wednesday 14 July 2021 that the copies of the documents will be produced by 5pm Friday 16 July 2021. If it is necessary, and we hope it is not, then we will list the matter as one of urgency before the Commissioner for a formal Order on Production to be made.

Yours faithfully
AITKEN LEGAL”

Multihull’s request for the production of documents was not accommodated by Mr Gorrie, which led to Multihull filing an application to the Commission on 15 July 2021 for the production of the same categories of documents, excluding the category relating to diary entries. I made orders in those terms the same day. On 19 July 2021, Ms Cordelle wrote to my chambers seeking to have the Order set aside:

“Dear Associate,

I have been instructed by the Applicant as to the Order for production, and to apply most respectfully to Commissioner Simpson to have the Order set aside.

The Applicant objects to the production of the documents on the grounds that inter alia;

·   he does not have the documents;
·   the documents would have to be created requiring weeks and a substantial amount of money to produce (which the Respondent being unfairly dismissed from his employment does not have);
·   it would be too onerous and oppressive and seriously and unfairly burdensome;
·   he does not have control of some of the documents;
·   the orders are speculative and amount to a fishing expedition, and that the Respondent seeks not evidence in support of its case, but to discover whether there is a case for it at all. The Respondent in the absence of evidence and procedural fairness, unfairly dismissed the Applicant as it has done allegedly with many of its staff, and attempts now when being called to account to fish for a shred of evidence that it may use to find a case after the fact. The Applicant submits that procedural fairness and natural justice dictates that the Respondent should produce and rely on the evidence it used to categorise the Applicant as a contractor for 8 years in contravention of the ATO’s clear guidelines, legal representative confirmations, repeated notifications, requests and ors, and to rely on the evidence it used and based its decision on to unfairly dismiss the Applicant – in a phone call after 8 years of loyal service and outstanding performance. The fishing expedition will not procure any evidence in favour of the Respondent, and it would be an outright injustice for the Applicant to suffer further expense (than he already has as a result of the Respondent’s alleged conduct) to be creating documents he is not financially in a position to have created;
·   documents requested bare no relevance to the Respondent’s case;
·   contain information which is confidential;
·   contain information which is commercially sensitive;
·   involves an unwarranted intrusion into the Applicant’s privacy;
·   the Respondent has provided no legitimate forensic purpose/reasons, particular or substantiation – failed to demonstrate the relevance of the documents sought;
The Applicant seeks the assistance of Commissioner Simpson and his indulgence to set aside the Order for production, and not allow the imbalance of power the Respondent has entertained throughout its dealings with the Applicant, (infringing upon Mr Gorrie’s fundamental rights and entitlements) to continue and impair the due administration of justice.

Kindest regards,

Sue”

In light of Mr Gorrie’s objection to the Order, I relisted the jurisdictional hearing to 4 and 5 August 2021, and issued further directions for the parties to file submissions in relation to the application to set aside the Order for Production issued on 15 July 2021. On 2 August 2021, the Jurisdictional Hearing was adjourned again due to the COVID-19 lockdown extension in Brisbane, and I relisted the matter to 16 and 17 September 2021.

I issued my decision in respect to the Order for Production of Documents on 2 August 2021. In my interlocutory decision, I was persuaded not to require the production of documents in relation to schedule 4 pertaining to Mr Nicholas Gorrie who appeared to have been a minor at the relevant times. I was otherwise satisfied that the production of the material sought may have been relevant and would assist the Commission in determining the matter. On that basis, I reinstated the Order previously issued.

Mr Gorrie subsequently filed three documents, which in Multihull’s view, were not responsive to the production order, and no adequate explanation was provided by Ms Cordelle as to why Mr Gorrie was not able to comply with the production order. On 7 September 2021, Mr Campbell filed a second application for orders for production against Vision Accounting Services (Vision) and Ascendia Accountants (Ascendia). I granted those orders against Ascendia and Vision for the income tax, invoice and trust documents relating to the Family Trust. Further production orders were also granted against Mr Gorrie and his wife. Those orders again sought the production of invoices issued by the Family Trust to entities other than Multihull in the period since March 2013. The production was due on 14 September 2021, however neither Mr nor Mrs Gorrie complied with those production orders.

The tax returns that relate to the Family Trust were produced by Vision and Ascendia. Mr Campbell noted that Vision did not produce any invoices issued by the Family Trust but had produced the Family Trust Deed which was not previously provided by Mr Gorrie as required under the first 2 August 2021 production order. The Costs Applicant advised that the tax records produced by the Family Trust’s two accountants’ firms are instructive, and that they relevantly showed that:

· for the financial years 2019/20 and 2018/19, the Family Trust earned $11,347 and $21,741.08 from unknown sources.

· although in previous years, the Family Trust had received relatively significant income from Ms Gorrie’s cleaning business, by 2016/17, that had declined to $710. On Mr Gorrie’s own evidence, the difference referred to above cannot be explained by reference to Ms Gorrie’s cleaning business.

On 22 September 2021, Ms Cordelle filed a notice withdrawing herself from the matter. Mr Gorrie was then represented by Aquila Law and the matter was ultimately discontinued on 22 October 2021.

THE RELATIONSHIP BETWEEN MR GORRIE AND MS CORDELLE

A significant portion of the First and Second Costs Respondents submissions justify their conduct by making reference to the conduct and omissions of the other cost Respondent. The evidence provided by Mr Gorrie and Ms Cordelle in respect to their relationship give rise to disputes in facts.

Mr Gorrie explained that he had engaged four separate representatives between 28 May 2020 to 17 December 2021 (excluding his current representatives, Kilmartin Knyvett Lawyers):

· Ascendia Lawyers from approximately 28 May 2020 to 17 September 2020;

· Leora Rose Law from approximately 16 April 2021 to 4 July 2021;

· Ms Cordelle from approximately 4 July 2021 to 16 September 2021; and

· Aquila Law from approximately 16 September 2021 to 17 December 2021.

Ms Cordelle, in particular, was the tenant in Mr Gorrie’s “granny flat” attached to his home prior to being Mr Gorrie’s representative. Ms Cordelle was his tenant from 7 April 2021 to 2 December 2021 when she ceased being a tenant as a result of a QCAT decision dated 26 November 2021 on the grounds of objectionable behaviour by Ms Cordelle.

From Ms Cordelle’s statement, it appeared that she provided advice and assistance to Mr Gorrie and his family in relation to a number of disputes prior to her notifying the Commission she was acting on behalf of Mr Gorrie as his representative for the unfair dismissal matter. Ms Cordelle had expressed her views to Mr Gorrie on 26 May 2021 that a general protections claim would have been a better avenue for Mr Gorrie and that they should catch up sooner before the solicitor began working and charging. It is clear from a text message sent by Mr Gorrie on 31 May 2021 that he invited Ms Cordelle to meet with his lawyer on “Friday” to chat and Ms Cordelle confirmed this was fine. On 1 June 2021, Ms Cordelle received a text message from Mr Gorrie confirming he had taken advice from Ms Cordelle to discontinue the unfair dismissal claim and commence a general protections claim instead.

I note that the email referred to by Ms Cordelle is a copy of Mrs Gorrie’s text message stating, “You are so sweet sue. Lets chat about how we will do this soon. We won’t take advantage of you. Promise” to support such statement. It is also noted from another screenshot from Ms Cordelle of a text message she sent to Mrs Gorrie on 7 June 2021, confirming that she was looking into the matter and asked to reschedule their catch up.

In the following emails between Ms Cordelle and Ms Loos, sent on 10 June 2021, it is clear that the discussions with Mrs Gorrie and the general protections claim were also in relation to Mrs Gorrie’s son, Mr Nicholas Gorrie:

“Thank you so much for that Inke & yes most certainly can include that.

My express apologies I attached the wrong draft of the resignation letters!! I will resend.

Yes absolutely please call me when you can this afternoon.

Kindest regards,

Sue

On Thu, 10 Jun. 2021, 10:15am Inke, <…> wrote:

Thank you Sue,

I will review in depth and come back to you shortly.

A cursory initial look, I note that:

1. I think we need to state somewhere that they were employed as cleaners (thus separate from the work Kelvin conducted as a broker); and
2. Also – in the letters Gorrie is noted as Gore.

Are you free for a call later this afternoon?

Many thanks,

Inke.”

For context, Ms Cordelle sent an email to Mr Mark Elkington from Multihull on 11 June 2021, on behalf of Mrs Gorrie and Mr Nicholas Gorrie, attaching their resignation letters. The email stipulated as follows:

“Dear Mr Elkington

I provide formal notification to you that I have been engaged in discussions and investigation with Mrs Tiffeny Gorrie and Mr Nicholas Gorrie pertaining to serious workplace matters of grave concern – matters of public interest – involving Multihull Solutions.

I additionally provide formal notification that I have been retained by these two separate individual parties to the dispute to advocate in conjunction with their individual separate ‘no win no fee’ legal teams as necessary in matters of:

· Gorrie, Nicholas v Greensphere Pty Ltd T/A Multihull Solutions in the jurisdiction of the Federal Circuit Court of Australia

and

· Gorrie, Tiffeny v Greensphere Pty Ltd T/A Multihull Solutions in the jurisdiction of the Federal Court of Australia

with action commencing to resolve alleged contraventions of the general protections provisions of the Fair Work Act 2009 (part 3-1) against;

· Mr Mark Elkington (the relevant decision maker) under accessorial liability civil remedy provisions - $13,320 for each contravention in addition to the compensation sought for relief for each applicant in their separate filings

and

Multihull Solutions under vicarious liability civil remedy provisions - $66,600 for each contravention in addition to the compensation sought for relief for each applicant in their separate filings

The civil remedy provisions pertain to inter alia:

·   obligations of compliance with the NES, modern awards and enterprise agreements
·   the general protections inter alia adverse action
·   sham contracting

Please note that further particulars will follow shortly.

Both Mrs T Gorrie and Mr N Gorrie most respectfully provide confirmation as to the following:

· That they find themselves with no choice but to commence proceedings against both you personally and additionally Multihull Solutions with the filing of individual formal claims in differing jurisdictions, to affect relief for combined losses totalling over $100,000 (one hundred thousand dollars), to seek orders for pecuniary penalties to be applied, and to seek costs
· Mrs T Gorrie finds herself with no choice but to attend to the filing of a workers’ compensation claim

Additionally, Mrs T Gorrie and Mr N Gorrie Multihull Solutions and all other relevant individuals and associates on notice that any further adverse action affected against their person or interests (inter alia defamation) as a result of the exercise of their lawful right to file formal proceedings will be vehemently pursued through the full force of the law.

An efficient and expedient resolution to these matters is sought in the interests of all parties, and Mrs T Gorrie and Mr N Gorrie look forward to your assistance and co-operation and the matters being progressed without delay. As such, please note that although I am currently on leave and not attending my office, to ensure the matters are progressing in line with my clients’ needs, all correspondence is to be electronically provided to this as my email address until further notice.

Kindest Regards,

Suzan Bonert
Australian Advocate”

It is noted that Ms Cordelle used a different name for the purposes of this correspondence. On 16 June Ms Cordelle provided a formal notification[8] to the Costs Applicant, that she had been retained by Mr Gorrie to act with Mr Gorrie’s lawyers on his behalf in the unfair dismissal claim, and general protections claims on a no win no fee basis.

At 9.54am on 17 June Ms Cordelle sent correspondence to Leora Rose Lawyers as follows:

“Good morning Inke,
Hope you are having a wonderful start to the morning.
Just to keep you updated and to let you know that the matter on our end is progressing, with Multihull being notified that in addition to Tiffeny and Nicholas, Kelvin has also made the decision to further his interests, and file a contravention of the general protections claim in the Federal Court, in support of and in addition to his unfair dismissal claim. This action is in essence a safety net, catching the unlawful actions of Multihull that are not covered by the unfair dismissal claim, and ready if it becomes necessary, to be amended and expand to include claims contained in the unfair dismissal action if it fails jurisdictionally at the upcoming Fair Work Commission arbitration. In investigating these matters further, I have formed the view that Kelvin has a strong case under the general protections and will be successful in obtaining orders for compensatory relief.
Hopefully that won't be the case, and the unfair dismissal claim will return a great result for the Gerrie family, or better still, that the matter be amicably settled between the parties before then, with an outcome both can live and move forwards with, with contractual protections in place for the Gerrie family against defamation, retaliatory sabotage et cetera, which has been alleged is currently being actioned by Multihull. Without a settlement agreement prohibiting further adverse actions, it appears that Multihull may continue to victimise the Gerrie family behind the scenes, and prevent them from earning a livelihood in this industry. The Gerrie family wishes to exercise the right to remain in this industry until such time as they see fit to exit it, and not be forced out despicably with unlawful sabotage from this organisation. Therefore a settlement agreement containing specific prohibitions is a compulsory outcome of these matters irrespective of commission/court outcomes.
Working together with you to support the claim in your hands at the FWC and lookin forward to the iminent successful outcome for the Gerrie family.
Please feel free to email or phone me if you require anything further or have any questions, and have a really sensational rest of the week.
Kindest regards,
Sue”

At 10:00am on 17 June, Aitken Law wrote to Leora Rose Lawyers referring to Ms Cordelle’s correspondence of 16 June seeking clarification as to whether the First Costs Respondent was still intending to peruse the unfair dismissal application.

At 11.45am on 17 June, Ms Cordelle sent correspondence to Leora Rose Lawyers as follows:

“Thankyou so much Inke,

& yes I can confirm that I am absolutely wonderful. Its a beautiful day & we have all woken up with breath in our lungs & another day to live life to the fullest. Such a blessing!! (smile emoji)
In brief, as I am late for an appointment -
I am delighted at the great news & that they have forwarded my correspondence to you. We want them active & taking it very seriously. The Gorrie family certainly takes it very seriously.
We discussed in our previous phone conversation the plans, including that Kelvin had rights under the general protections, & that he may exercise those rights to file a claim at the most productive time - & that time has come.
This action is separate to the unfair dismissal action, & pertains to different lawful rights & has no bearing on the FWC action, or to yourself, or your position as solicitor, as you are not involved outside of unofficial notifications to keep you abreast & in prime position to obtain the best possible outcome for the Gorrie family.
This was as previously discussed & agreed.
The correspondence from their solicitors is usual nonsense, & of no concern. They have to try something when the gravity of the matter is being revealed.
There is no 'double dipping here with these two separate actions, & in the absence of a settlement agreement, the unfair dismissal action continues as planned with Kelvin & yourself, & the additional separate action for compensatory relief for contraventions of the general protections commences shortly.
If they find that they have issue with the new additional action, then they can raise their objections correctly - jurisdictional or otherwise - in the Federal Court process. It has no bearing on the unfair dismissal claim at FWC.
At this time, they simply need to be referred back to me for matters pertaining to the Federal Court action.
I won't be available until late this afternoon, so if that suits then by all means let’s have a catchup discussion .
Kindest regards,
Sue”

At 5.39pm Ms Cordelle sent an email to Mr Gorrie with a proposed draft letter to be sent to Mr Elkington.[9] The proposed letter read as follows:

“Dear Mr Elkington,
Without prejudice save as to costs
Please find attached correspondence for your consideration, in the interests of efficient and expedient resolution of this matter, and to avoid incurring further significant costs of a Federal Court of Australia Originating Application.
There is no doubt that it is in the best interests of the parties to settle this matter sooner rather than later and as amicably as possible. These matters once filed in court are a matter of public record, and it is the intent to request colleagues from the media to attend these proceedings so that the public may be forewarned and aware of these matters. Currently a large number of former employees witnessing culture, character and alleged unlawful conduct are willing to be called to provide evidence inter alia alleged:

1. emails evidencing fraudulent conduct towards clients
~~2. audio recordings evidencing fraudulent conduct towards clients, employees, government organisations and ors~~
3. sale of both new and secondhand vessels without disclosure of important history including ~~full and~~ ~~partial submersions~~ a failed vessel design sold off as another brand failed vessel design sold off as another brand
4. workplace injuries resulting in deplorable adverse action and other contraventions of the general protections
5.deplorable adverse action and contraventions of the general protections pertaining to NES and maternity leave
6.fraud and tax evasion within the company
7.
while there are also several other witnesses that have been located to provide evidence under subpoena.
Mr Gorrie has made his intentions clear in that in the absence of a resolution of this matter in good faith prior to the need for court action, he reserves his right as a 'whistleblower' to disclose these matters fully.
We look forward to hearing from you.
Kindest regards,
Sue Cordelle”

At 5.42pm on 20 June Ms Cordelle sent a text message to Mr Gorrie as follows:[10]

“God bless awesome warriors of our lord – can u please go over email/letter as I need 2 leave 4 prayer service in about 10 mins, & I want 2 send this 2 Mark if possible b4 I leave (various emoji’s)”

Mr Gorrie responded to the text message from Ms Cordelle expressing that he wasn’t comfortable with the email.[11]

At 6.02pm Ms Cordelle responded to Mr Gorrie as follows:

“I’ll leave this in your hands guys, but please be aware, that timing is everything, and just as I can't advise you on how to sail a boat or how to broker boats etc, as you guys are the experts in this area, so the same applies for my job in this matter, it is my history and experience that will get the result for you, most importantly with Lord God's anointing and favour that he gifts me with.
I will not be discussing this with Inke, just so that you are clear. She will have no further information as to what my plan is. Her job is to move the unfair dismissal claim forwards, and mine is to obtain your settlement.
Please always know that if you prefer, I am more than happy to let it go and leave it all with you and Inke to take forwards in the manner that you wish. It is your case.
Much love:)”

At 7.30pm on 20 June Mr Gorrie responded to Ms Cordelle as follows:

“Hi Sue,
I’m really struggling now and having a freaky Sunday. It seems all to much. But I’m not giving in and God with Your assistance we will get through this.
See suggestions below in RED.
……….”

At 10.07pm on 20 June Ms Cordelle responded as follows:

“Spiritual - Great to hear Bro in Christ, Lord does not allow more than we each are created to get through and endure. It might feel like it at the time (been there many a time myself - tried, tested and proven by fire) and I am sure Job did too hey! He was tried and tested, and it was only his love and reliance on our Lord that got him through.
David got through the biggest loss of his life, he lost everything and was attacked by every single one of his crew. He rose up by encouraging himself in our Lord. The living Word = our 'how to' manual. And the more we go through, the deeper our knowledge of and faith in our Lord develops, and the easier it becomes.
We want our army stripes for the new earth Lord will provide - I don't know about you, but I have no intention of being a 'Private' for eternity lol - I'd rather go through the temporary battles now, and end up in one of the top jobs - the idea off 'General ' I find pleasing haha.
And the good news is there's still time to get those stripes (emoji) King Jesus is coming back soon, and we won't be here in this state for too much longer yaay! I've got the pom pom's and balloons out already!!! Rapture ready with my lamp full of oil for the Bridegroom's return. Eyes alert and scanning for our King, not on the things of this world - no lock out for meeee when He closes that door:) It's too close to risk.
Natural - Unfortunately I am not coming into agreement with those amendments, so we'll need to have a meet to go through them towards the end of the week on Friday or over the weekend. My schedule this week is 'runneth over' with deadlines and other work and commitments that have to be completed this week, and some of which I have put off last week to progress your case.
There's been resistance with all three emails I've tried to put forward for you guys, and it's not productive when there is a lack of trust and fear in operation. I seriously don't have the time for this to be unnecessarily complicated, drawn out and taking more time than it should.
We are on a tight time frame, if it doesn't settle before the Fair Work hearing, it will take longer, and get harder especially if the result turns out poor or average. No one is going to hand over 30,000 plus without being compelled.. Its more than possible, Lord has blessed me victorious time and time again, but I won't be battling both you guys and also them the entire way.
You either trust that I have been sent as King Jesus's hands and feet, and that He has equipped me to move this into your favour - or not and you hold onto it and do it in your own understanding.
Completely up to you :)
Bless you”

At 7.44am on 21 June, Mr Gorrie responded to Ms Cordelle seeking a quick meeting when she was free.

Ms Cordelle relies on a text message she sent to Mr Gorrie at 1.54pm on 21 June 2021 which reads as follows:

“& all this is why I would never have claimed that ‘u were an employee’ but used the actual truth 4 MORE money – which is that u were a contractor – who by law SHOULD have been an employee. That’s the truthful gold nugget. Thats ok. Lord will give me gold nuggets in their volumes of info. Blessed!
Lo”

Mr Gorrie produced a further text message he said was sent to him by Ms Cordelle on 23 June[12] and that reads as follows:

“I say, we are going 4 the win in both the Fair Work action & in additional action 2 sweep up the remaining entitlements not covered under unfair dismissal laws. That will get the settlement money with the protections in place so they can’t rubbish u’r name or stop u from working if u want 2. Thank You and bless you.”

Ms Cordelle claimed in her second statement[13] that the alleged text message of 23 June had the date and time stamp removed, and had been modified and further its order in a text chain modified. However, in her second statement Ms Cordelle provided her own version of the text which was consistent with the version provided by Mr Gorrie except that it did not include the word “Jesus” which Ms Cordelle said confirms it was intended as a prayer to Jesus, and a positive affirmation, rather than addressed to Mr Gorrie. In the material provided by Ms Cordelle Mr Gorrie responded with a text message saying “Size words You are so good”, I presume this text message was intended to say “Wise words” instead of “Size words”.

I am not inclined to accept what is inferred in Ms Cordelle’s evidence that her text should not be taken as encouragement for Mr Gorrie to persist with his unfair dismissal claim and she was in fact encouraging him to discontinue it.

Throughout Ms Cordelle’s first statement, she said that from 20 June 2021, Mr Gorrie had a pattern of backing out of his claim but then on the next day, claiming he would not give in and continue pursuing his claim. Ms Cordelle explained that this occurred continuously throughout the matter as he “see-sawed” from one to the other, creating a lot of unnecessary extra work. Additional emails were sent under the name Ms Suzan Bonert (who is Ms Cordelle) to Mr Elkington making offers of settlement in respect to the originating motion in the Federal Court of Australia between Mr Gorrie and Multihull. In particular, an email was sent on 27 June 2021 to Mr Elkington alleging that Multihull had filed false and misleading evidence through the statement of Mr Marcus Ashley-Jones at the Fair Work Commission and also false and misleading evidence in respect to recordings and communications filed at the Commission.

Ms Cordelle also relies on text messages she exchanged with Ms Loos on 25 June. At 4.07pm Ms Cordelle sent a text message to Ms Loos seeking her thoughts as to ‘the offer’. Ms Loos responded at 4:27pm noting she thought the original offer was around $89k.

At 4.45pm Ms Cordelle responded as follows:

“Hahaha! Thats perfect!! I didn’t even know (smile emoji) What would u consider a fair offer 2 be 2 accept & discontinue bearing in mind covering u’r costs?”

At 4.48pm Ms Loos responded:

“Let’s go up to $95k Give us room to move down Provided kelvin agrees of course I know I don’t need to tell you, but make sure without prejudice save as to costs”

At 5.10pm Ms Cordelle responded as follows:

“Perfect!! That sounds great Inke. Fully justifiable with an accounting of some costs accrued since the unreasonable refusal 2 settle & further pain & suffering.
Yep will run it all by him b4 the blessed sending (smile emoji) have discussed/introduced $91,000 previously so he should be fine with an increase.
Thanku so much Inke!! Lovin the reminder (emoji) Multiple minds & experience workin 2gether & we do not fail (two emoji’s) & it will be in there.
Ps; would u like me 2 send u a draft 4 u’r input/checkover, or prefer a copy aftr the fact & I have sent it, or wait 4 Aitkin 2 pass on 2 u (laugh emoji) they’ll no doubt forward it on
sensitive as 2 u’r wisdom & direction on whats best with that”

On 26 June 2021 Ms Cordelle sent correspondence to Leora Rose Law and Mr Gorrie as follows:

“Good morning Kelvin and lnke,

Claim 1 - Unfair dismissal claim FWC - onus of proof rests with the applicant - Mr Gorrie proves his claim
Claim 2 - Contravention of the general protections Federal Crt - reverse onus of proof - Multihull and each individual respondent must disprove Mr

As has come to light with new evidence, there is a legal right to pursue additional parties through the general protections, and I propose an expansion to this claim to additionally include the following respondents and fair amounts for an offer of settlement, to be put to each respondent individually tomorrow as follows;

l. 1st respondent; Multihull Solutions (the company through vicarious liability)
$95,000 plus pecuniary penalties (emailed to Mark)
2.2nd respondent; Mark Elkington (an individual through accessorial liability and the decision maker) $41,000 plus pecuniary penalties (emailed to Mark)
3.3rd respondent; Patrick Gilot (an individual through accessorial liability)
$30,500 plus pecuniary penalties (emailed to Patrick cc'd to Mark)
4.4th respondent; Marcus Ashley-Jones (an individual through accessorial liability) $10,990 plus pecuniary penalties (emailed to Marcus cc'd to Mark)

Claim 2 being separate to claim 1, will constitute a substantial increase to the company's possible losses if they continue unreasonably to refuse to provide restitution. It will be reiterated to the company representatives that claim 2 is in addition to claim l's pursuit of $89,000 for restitution of the applicant's employee entitlements and unfair dismissal, totaling $184.000.

Claim 2 further incorporates $82,490 in total for the individual parties liabilities.
As reinstatement is a very important condition of proper restitution, I propose that it is amended into claim 1, and that the respondent's legal representative is notified of this amendment at the earliest opportunity.
The reasons are to highlight to the 1st and 2nd respondents that this is a vital condition of relief, and the respondent may wish to consider removing the risk of an order for reinstatement through the negotiations of the terms of a settlement. Highlighted will also be the intended action that should claim 1 fail jurisdictionally, claim 2 will immediately be amended to include all matters that could not be heard through claim l's jurisdiction - the general protection laws incorporating applicable coverage for both employees, and contractors.
The respondent is to be well versed in the course and likely costs and risks of these matters, and hold no doubt that the matters will not be frustrated, and will be heard, and their continuance in these matters bears no prospect of success.
Kindest regards,
Sue”

On 30 June 2021 at 7.18pm, Ms Cordelle sent an email to Mr Gorrie and Ms Loos stating as follows:

“Hi Kelvin & Inke,
Lets discuss proposed amendments all together tomorrow before any are made & time utilised as we need a different focus/angle on this.
Clarity & focus on our strongest points/evidence & what the crts are looking for to prove a sham contract- rebutting their grasping at straws’ claim is secondarily.
Commissioner doesn’t get our months worth of intimate knowledge of this dispute.
We need to convince the commissioner that he WAS an employee – when he was not – (as the truth is he WAS a contractor that SHOULD have been an employer) or it will fail. This will embolden them. We do not want this.
Unfair dismissal covers employees only. Contractors are covered by the general protections. We steer clear of contractor behaviour & language & highlight all employee behaviour & language.
The delivery driver/Deliveroo case is different to Kel’s. Our biggest problem is this IS a VERY specialised specific trade/service. Delivering food is not. Anyone can do it. Its not even a little similar.
We need less detail in some areas & more in others.
If claim 1 fails, the commissioner could award respondent costs to Kel, (vexatious/applicants error – they’v done it before) as it should have been a general protections claim & has unnecessarily cost the respondent money, & will need to start all over again (if he allows it – as its now well & truly out of time) costing them more.
We won’t be voluntarily putting forward ‘contractor’ action behaviour (thats their job) & trying to excuse it.
If Kel acted at times as a contractor, & they say Kel is a contractor, & the agreed contracts say Kel is a contractor on the balance of probabilities with such a specialised trade & experience needed the commissioner could err on the side of caution & say it is in the wrong jurisdiction.
As this has in error gone down the unfair dismissal route…”

Mr Gorrie’s evidence was that around 3 July 2021 he mentioned his unfair dismissal application to Ms Cordelle, and Ms Cordelle said to him, words to the effect, that she could give him and his wife lots of advice. Mr Gorrie then invited Ms Cordelle over for dinner, during which she said:

· Ms Cordelle wanted to help Mr Gorrie and his wife as they had been led down the wrong path by Mr Gorrie’s former lawyer, Ms Loos from Leora Rose Law;

· Ms Cordelle knew about how the Commission operated;

· It was not necessary for Ms Cordelle to be a lawyer to represent Mr Gorrie in the Commission; and

· Ms Cordelle has a lot of experience achieving good results in the Commission and was able to help him.

On the morning of 3 July 2021, Ms Cordelle sent Mr Gorrie a text message, stating as follows:

“We need 2 get out of this FWC application & change it 2 the general protections without incurring costs.

I have a plan/strategy & am booked in 4 an hr free appt with an employment law specialist monday @ 4pm 2 run it by them & confirm the best & most advantageous way. I’ll do that with a number of other employment law specialists in this field & we’ll strike early next week.

I’ll fill u in a bit later when u’r free.
These specialist legal terms will then be on call ready 2 jump in at any point u want if u ever feel u want them involved.

Inke was a mistake – out of her depth of experience & knowledge & she had a professional duty 2 not act outside of her qualifications & cause u/u’r case, harm & financial loss.

So we fix that as best we can 4 now in the interum – Lord will restore what enemy stole thru that & enemy must restore 7 fold, so it will be made up/returned 2 u. Amen!

But we stop that bleed of unnecessary costs (emoji) & her harming u’r case further.”

Mr Gorrie sent text messages back, enquiring about his unfair dismissal claim and his fear about jeopardising his position given they had not submitted or communicated with the Commission. Ms Cordelle then responded as follows:

“…no stress 4 u Kel, chillax, enjoy u’r weekend & Lord is fixing it all. He is all over it. He’s already proved that 2 u.

Without His intervention, look at the messy enemy would have put u in, just with those last 2 documents – the factually incorrect submissions & u’r own terrible witness statement drafted by some1 who does not know better & is not listening 2 Lord’s voice.

This is Inke’s 1st employment law case, & 1st case ever at the FWC. U are her training ground.

I know the FWC Kel, I have taken many of us thru their process, including myself over many years. And EVERY single case was a WIN with more money than was reasonable 2 be won.

I an employment law specialist. I dont need 2 be a solicitor 2 be 1. There are many non lawyer advocates specialising in this area of law.

So relax. This is not a business deal – I am not an IC 4 u (emoji)

I am u’r sister in Christ, & the Lord commands me 2 love my neighbours as… I therefore am reclaiming u’r rights as tho it waa me in u’r seat.

We will submit on monday, & I’ll catchup with u on all of that.

Remember Lord has got it, & we are only waiting 4 the manifestation of the victory.

Enemy trying 2 de-rail it, & harm u’r interests has been de-commissioned.

Enemy presents itself & its influence thru others as sweet & as innocent as can be, with good intentions – refer back 2 the bible & the snake in the garden.

There is never trust in the unsaved as they do not know the voice of our shepherd, but listen 2 any/all voices.

Inke would have shafted u with her documents – what was in them, & what was missing.

The Lord our God gets it right. (emojis)

And I am here 2 serve Him, & my bro’s & sister’s in Christ. We’re one. We win (emojis)” (sic)”

Ms Cordelle supplied a screenshot of a text message sent to Mr Gorrie on 4 July 2021, in which she wrote:

“1) I file with FWC representative commencing 2 act so Inke’s no longer acting.

2) U send email 2 Inke – end of her services

3) submit application advising delay of defence & request 2 withdraw unfair dismissal application without prejudice & with leave 2 file contraventions of general protections in its stead in an out of time app.

We fix it as it should have been in the 1st place.”

On 7 July 2021, after Ms Cordelle received the offer of settlement from Multihull, she sent four separate text messages to Mr Gorrie, as extracted below:

“They’v asked if u’v received their offer again, & I’v advised will get back 2 him on that – that u have a medical condition due 2 the adverse action of the respondent & will be filing a workers compensation claim.

We’l work on our time frame as planned – file the [bomb emoji and explosion emoji] material on friday. & send them an offer 1st thing Monday morning [happy face emoji]

Then we can talk about THAT instead! Go Lord God GO!!! …

Have thanked the Commissioner 4 the extension.”

In the same screenshots filed by Mr Gorrie, Ms Cordelle sends another text message on 7 July at 1:20pm stating:

“Dont respond 2 that email from aitken. All garbage. Peacocking. They are super keen 2 settle hey, & will be even more so after they go thru our material. We stick 2 our plan.

Aitken’s done us a favour [smile emoji] I can use the same 2 include thru 2 mark as well as 2 aitkin now when I send u’rs thru.

Lets give Mark some major stress over the werkend & get really afraid b4 Aitken puts their 2 cents worth in..

Bc I can now contact Mark as well, I will bring 4ward the offer 2 be sent 2 him shortly aftr the other material.

What a blessing! Thank You Abba Father, gifts & surprises from You everyday now yaay…

And I will take him up on the offer 2 provide the fwc standard settlement contract.

I’ve already got it, but happy 2 keep their costs continuously rising.

Ruben legal thinks exactly the same way as I do. She said 2 keep that pressure on 4 the settlement. Amen 2 that …

I love that he offered 2 provide it [laughing emoji]

$$$$$$$$$ 4 MS

Wed, 7 Jul, 2:30 pm

If aitken gets hassled by mark over the weekend with overtime rates hahaha, yeah… its good [smile emoji]”

Mr Gorrie noted that no offer was ultimately made to Multihull by Ms Cordelle. Mr Gorrie advised that he was very unwell at this time and could not recall why Ms Cordelle did not make an offer as she had suggested. Ms Cordelle however refuted this stating that Mr Cordelle was not unwell and that he was adamant to continue his claim.

On or around 21 July 2021, Mr Gorrie sent a text message to Ms Cordelle at 8.47pm indicating that he did not wish to supply details of his income to the Commission. Multihull’s Lawyers had previously sent correspondence to Ms Cordelle seeking production of documents and when the documents were not produced, filed an application for orders to made for production by Mr Gorrie. Orders were issued and a subsequent application was filed by Ms Cordelle on behalf of Mr Gorrie seeking that the orders be set aside. Following a contested interlocutory hearing, Mr Gorrie was ordered to produce a range of documents.

On 3 August 2021, Mr Gorrie advised that he wanted to settle his unfair dismissal claim. He provided examples of text messages he sent to Ms Cordelle expressing this:

“I want out again. I wish this could all go away. It’s too much!

Lets make an offer.

I can’t carry on like this. Believe it’s taking a MASSIVE toll on us as a family.

Life and happiness and health is worth more than money.”

On the same day Ms Cordelle sent a lengthy text message in response encouraging him to continue his claim or make an offer at that stage. Ms Cordelle advised that this was all the same familiar repeating pattern and she acted on his instruction to not indulge it. The text message is extracted below:

“Well Lord God has put His pitbull in the mix, 2 make sure u remain in faith.

U’r not full of Holy Spirit or that would not be coming out of u.

Strengthen u’rself in the Lord as David did & then we can chat. Fill u’rself with His word & follow Him. Not u’r flesh which wants easy street no matter the cost.

U dont make an offer now when we are ordered 2 produce docs.

What possible reason would they have 2 settle!

They would come after u 4 all their costs bc u brought a claim against them that ur werent serious about.

U’d look like a guilty, defeated weakling. Is that who Lord says u are?

Is that what u want 2 model 2 u’r family? Give in in the battle? Dont endure?

Get out of that new green bible & write the revelation He gives u in those beautiful spaces provided 4 drawing or writing revelation next 2 the scriptures.

I’m not listening 2 u’r flesh. Subdue it.

Rise up & get on with it. Its on u’r plate, Lord has put it there so deal with it.

U cant run from Lord & what He wants u 2 learn & go thru.

Avoid this, & another even bigger will come from just around the corner.

Jonah & his avoidance in the whale are un the bible 4 a reason. Read that scripture this morning & tell u’r flesh, & the demon in u’r ear 2 shut up.

I dont have time with my workload 2 prop u up 2day. Stand!”

Ms Cordelle advised that in a matter of hours, he was back to normal and adamant to see his unfair dismissal claim through.

Mr Gorrie explained that he is a devout Christian and Ms Cordelle is aware of this. Mr Gorrie is aware that Ms Cordelle is also a devout Christian. In providing advice to Mr Gorrie, he advised that Ms Cordelle would frequently frame her advice in the context of his religious belief. Mr Gorrie asserted that this predisposed him to trusting her advice.

On 6 August 2021, Mr Gorrie said he sent 2011-2020 tax returns for the Trust, himself and Mrs Gorrie, as well as the Family Trust Deed, to Ms Cordelle in an email entitled tax returns. On the same day, Mr Gorrie said he sent an email entitled “Re; invoices all to date” to Ms Cordelle, attaching a PDF document entitled “InvoiceListbyDate.pdf”. In that email, Mr Gorrie wrote that they needed to catch up prior to sending anything off. On that same day, Mr Gorrie sent another email entitled “Re; invoices 14 March 2013 to date” to Ms Cordelle attaching a PDF document entitled “InvoiceListbyDate-3.pdf”.

In Ms Cordelle’s statement, she supplied a copy of the list of invoices entitled “SHINE UP Invoice List by Date 14 March 2013 – 6 August 2021. Two of the 24 invoices appear to be issued for services provided by Mr Gorrie through the Family Trust to companies in the marine industry (other than Multihull) during the time in which he provided services to Multihull. Another two were invoices for boat sales that occurred soon after Mr Gorrie’s termination date. Also on 6 August 2021, Mr Gorrie sent an email to Ms Cordelle stating that he could not find the Family Trust Deed and his previous accountant did not have it.

On 18 August 2021, Mr Gorrie sent an email to Ms Cordelle titled “Invoices” attaching two PDF documents, one called “InvoiceListbyDate18AUG.pdf” and the other called “InvoiceListbyDate-18AUG no MHS.pdf”. On 20 August 2021, Ascendia sent Mr Gorrie an email entitled “2011-2020 NOA” attaching two Zip files called “Kelvin Gorrie.zip” and “Tiffeny Gorrie.zip” in apparent response to a request from Mr Gorrie. These were forwarded to Ms Cordelle that day. On the same day, Ms Cordelle sought lists of Trust invoices for various services provided by Mr Gorrie.

On 23 August 2021, in addition to the Notice of Assessment and a number of other documents not responsive to the order, Ms Cordelle filed with the Commission two spreadsheets purporting to list invoices issued by the Trust. Aside from two invoices, those lists did not contain the Non-Multihull Invoices.

Mr Gorrie advised that between July and August 2021, he suffered from considerable health problems which made ongoing litigation impractical. Mr Gorrie said the health problems he was experiencing meant that he relied on Ms Cordelle a lot for assistance with the unfair dismissal claim. Mr Gorrie said he felt that Ms Cordelle was in control of his claim and felt pressure from her to keep the claim going. He said he was often kept in the dark by Ms Cordelle about matters concerning his application, but Mr Gorrie trusted her to handle the claim on his behalf. On the occasions when Ms Cordelle would ask Mr Gorrie to review emails or submissions before they were filed, Mr Gorrie said that there were many times he would not accept drafted emails or submissions as they were not true.

On 2 September 2021, Ms Cordelle submitted to the Commission that Mr Gorrie did not have access to his tax returns or the Trust Deed.

On 10 September 2021, Ms Cordell sent Mr Gorrie an email where she told him that, “Your position will be confirmed as opposed to the adjournment”.[14]

On 15 September 2021, Mr Gorrie sent an email to Ms Cordelle indicating that he had instructed his accountant to not comply with the production order.[15]

Multihull submitted that by Mr Gorrie’s second unexplained failure to comply with a production order, it was apparent to Multihull that Mr Gorrie had no serious desire to press on with the application. However, the claim persisted for approximately a further month. If the above submissions are not accepted, Multihull submitted the very last time when it would have been reasonable for him to discontinue the claim was 14 September 2021 (the day on which production under the second order was due). Multihull argued that costs subsequently incurred by Multihull were as a result of Mr Gorrie’s unreasonable conduct in that regard.

In relation to Mr Gorrie’s alleged failure to discontinue his unfair dismissal claim between 14 September and 22 October 2021, Mr Gorrie’s evidence is that:

·   he wanted to settle his claim as early as 3 August 2021 but Ms Cordelle discouraged him from doing so;
·   he had also been advised by Ms Cordelle, Ascendia Lawyers and Ms Loos that he had a good case with great prospects;
·   although Ms Cordelle had discussed making a settlement offer with him on 14 September 2021, he did not ask Ms Cordelle to send an offer at that time because he had already decided to engage Aquila Law to represent him and he had lost faith in Ms Cordelle’s ability to represent him;
·   he decided to engage Aquila Law around 14 September 2021 and at that stage he was determined to end his claim via a settlement offer or discontinuance;
·   after seeking advice from Aquila Law, he sent a settlement offer for 8 weeks’ pay to Multihull around 6 October 2021 (open until 5pm on 8 October 2021), but this was not accepted;
·   Aquila Law were never able to obtain a complete copy of the file for the unfair dismissal claim from Ms Cordelle which created issues and caused delays with the progression of his matter after he engaged Aquila Law; and
·   he ultimately discontinued the unfair dismissal application on 22 October 2021 because he could no longer afford to continue with his claim, financially or psychologically. His decision to discontinue was not because he thought his case was hopeless, and in fact he was advised there were other jurisdictions where he could commence a claim.

After engaging his new lawyers, Aquila Law, on 16 September 2021, Mr Gorrie submitted that it was reasonable for him to wait for their advice before sending a settlement offer to Multihull on 6 October 2021 (less than 3 weeks later). This period of 3 weeks could be explained by the difficulties Aquila Law had in getting a copy of all the relevant material. The period of two weeks between 8 October 2021 (when the settlement offer to Multihull expired) and 22 October 2021 (when the notice of discontinuance was filed) was not unreasonable. In these circumstances, Mr Gorrie asserted that his not discontinuing his claim on 14 September 2021 was not unreasonable.

Mr Gorrie also submitted that in circumstances where he was not made aware of the 8 September Order, his failure to comply with the 8 September Production Order does not show that he had no serious desire to press on with the application by 14 September 2021.

I have already accepted there was a delay in Ms Cordelle bringing the 8 September order to the attention of Mr Gorrie. I am inclined to accept that the delay in his receiving advice from his new lawyers was related to issues in connection with the handing over of a complete file from Ms Cordelle to Aquila.

In the circumstances there is an explanation for the delay in his ultimate decision to discontinue. I reject the application for costs against the First Costs Respondent on the basis of ground five.

Ground 6: Ms Cordelle’s failure to properly advise Mr Gorrie as to the prospects of Multihull’s application for an order for production

Multihull acknowledged that there is no direct evidence as to the advice that Ms Cordelle gave Mr Gorrie in respect of resisting the first order of production. However, Multihull submitted that it is open for the Commission to infer that she failed to properly advise him as to the prospects of Multihull’s application for an order for production. If she disputes that inference, then Multihull argued that it will be open to her to lead evidence of the advice that she did give (noting that Ms Cordelle’s correspondence with Mr Gorrie will not be covered by legal professional privilege).

Ms Cordelle refuted she had failed to properly advise Mr Gorrie as to the prospects of Multihull’s application for an order for production. Ms Cordelle submitted that this is due to the following basis:

· Mr Gorrie’s ongoing deception and dishonestly from the time of his termination and to date, his refusal to discontinue his unfair dismissal claim, his failure to act on advice, constant changes to his instructions, and the withholding of key facts to his representatives.

· Ms Cordelle repeatedly provided Mr Gorrie with advice and information sourced from qualified sources inter alia Accountant and legal practitioners to discontinue his unfair dismissal claim from as early as May 2021 and throughout the course of the matter, inter alia prior to and at the time the production orders were made.

· Ms Cordelle properly and fully informed and provided copies to Mr Gorrie of all the orders and production including the orders from 8 September 2021 and provided proper advice as to the orders.

· Mr Gorrie refused to provide documents in the orders, falsifying excel spreadsheets of invoices to hide his contracting, submitting falsified witness statements as to the sale of ‘Lucky Calf’ and as to him being employed when he was brokering under his business ‘Point of Sale’, and following in the same vein refusing to provide the documents from his own 8 September 2021 Production Order.

· Mr Gorrie was seeking and waiting on legal advice as to the 8 September Production Orders and retained new representation between 10 and 13 September 2021 (believed to have been 10 September after the formal complaint made against Mr Gorrie as to the harassing of Ms Cordelle at her home) where he was able to brief his new legal representative Ms Mouritz as to the orders and receive her advice.

· Ms Mouritz did not contact Ms Cordelle as to either Mr Gorrie or Mrs Gorrie’s Orders of Production at any time and made contact with Ms Cordelle by phone call on 23 September and by text message on 24 September 2021 requesting general file material.

· The production orders and Mr Gorrie’s unfair dismissal claim were out of Ms Cordelle’s hands no later than between 10 to 13 September 2021.

· Ms Cordelle provided Mr Gorrie with advice and information that his unfair dismissal claim had little if any prospect for success, and that his claim was better suited for a General Protections application involving a dismissal, but he refused to discontinue.

·   Ms Cordelle provided information and qualified advice in good faith – to have later become evident as the unfair dismissal claim progressed the dishonest and deceptive claims made by Mr Gorrie as to key facts and events.
·   Mr Gorrie’s unstable conduct was not reflective of advice provided to him, as he repeatedly changed his instructions from day to day, lied, ignored and failed to act on advice provided to him from representative both prior to his termination and afterwards through the course of the unfair dismissal claim.
·   Mr Gorrie relied on and acted on advice from any number of friends and unqualified third parties during the course of the unfair dismissal claim, in addition to legal advice obtained.
·   Mr Gorrie was in control of his claim and provided instructions to Ms Cordelle.
·   Ms Cordelle provided information and qualified advice – however it was always up to Mr Gorrie what he chose to do with his own claim. The matter was always in his hand, and Mr Gorrie was heavily involved in the unfair dismissal claim to the point of harassing Ms Cordelle in her own home.

·   Emailed discussion as to instructions and discontinuing on 27 August 2021, and in numerous other emails and text messages where Mr Gorrie’s approval and instruction was sought after advice had been provided confirm Mr Gorrie was properly advised, up to date and aware of all matters to do with his claim.
·   Mr Gorrie, in his own evidence, confirms he was in control of his unfair dismissal claim, receiving and approving correspondence throughout the course of the matter.
·   Mr Gorrie’s instructions were as to all settlement offers (including both offers from Multihull) that there must be a financial pay out from Multihull for him to consider it. This was further confirmed by email on 27 August 2021, where Mr Gorrie states he would not consider discontinuing and Multihull must be pursued until at least a small financial payout was forthcoming to him.

· The multiple offers Mr Gorrie made himself to Multihull through Ms Loos, Ms Cordelle and Ms Mouritz all confirm the same, that the primary goal was to obtain financial benefit from Multihull.

Ms Cordelle advised that she is not a legal practitioner and as such is not permitted to practice law and advise as a legal practitioner advises. Ms Cordelle stated she is permitted to represent insofar as obtaining information and qualified advice to be provided to Mr Gorrie, and to assist with the expedient and efficient running of the matter at the Commission, and dutifully did so, without unreasonably incurring costs to Mr Gorrie.

Ms Cordelle submitted that she did not unreasonably procure costs for the Costs Applicant as to the production of documents, as Mr Gorrie forbid, and instructed both Ms Cordelle and his Accountant to not submit documents as he would not comply with the production order – exposing his dishonesty and deception as to his unfair dismissal claim from the onset and throughout his unfair dismissal claim.

The first application for production of documents was filed on 15 July 2021, and the orders were issued by the Commission without recourse to the First or Second Costs Respondent. It is open for the Commission to take this approach where the Commission is satisfied on the face of the application the documents sought are relevant to the matters at issue. The orders when issued include advice to the party to whom the orders are directed that they may object to the orders. Ms Cordelle on behalf of Mr Gorrie advised chambers by email on 19 July 2021 at 2.02pm as follows:
“Dear Associate,
I have received the Order for Production now and am awaiting Mr Gorrie's instruction.
Kindest regards,
Sue”

At 3.34pm on the same day Ms Cordelle sent the following email to chambers:

“Dear Associate,

I have been instructed by the Applicant as to the Order of production, and to apply most respectfully to Commissioner Simpson to have the Order set aside.
The Applicant objects to the production of the documents on the grounds that inter alia;

· he does not have the documents;

· the documents would have to be created requiring weeks and a substantial amount of money to produce (which the Respondent being unfairly dismissed from his employment does not have);

· it would be too onerous and oppressive and seriously and unfairly burdensome;

· he does not have control of some of the documents;

· the orders are speculative and amount to a fishing expedition, and that the Respondent seeks not evidence in support of its case, but to discover whether there is a case for it at all. The Respondenet in the absence of evidence and procedural fairness, unfairly dismissed the Applicant as it has done allegedly with many of its staff, and attempts now when being called to account to fish for a shred of evidence that it may use to find a case after the fact. The Applicant submits that procedural fairness and natural justice dictates that the Respondent should produce and rely on the evidence it used to categorise the Applicant as a contractor for 8 years in contravention of the ATO's clear guidelines, legal representative confirmations, repeated notifications, requests and ors, and to rely on the evidence it used and based its decision on to unfairly dismiss the Applicant - in a phone call after 8 years of loyal service and outstanding performance. The fishing expedition will not procure any evidence in favour of the Respondent, and it would be an outright injustice for the Applicant to suffer further expense (than he already has as a result of the Respondent's alleged conduct) to be creating documents he is not financially in a position to have created;

· documents requested bare no relevance to the Respondent's case;

· contain information which is confidential;

· contain information which is commercially sensitive;

· involves an unwarranted intrusion into the Applicant's privacy;

· the Respondent has provided no legitimate forensic purpose/reasons, particulars or substantiation - failed to demonstrate the relevance of the documents sought;

The Applicant seeks the assistance of Commissioner Simpson and his indulgence to set aside the Order for production, and not allow the imbalance of power the Respondent has entertained throughout its dealings with the Applicant, (infringing upon Mr Gorrie's fundamental rights and entitlements) to continue and impair the due administration of justice.

Kindest regards,
Sue”

The matter was brought on for mention the following day and directions were issued for the parties to file submissions on the application to set aside the orders issued on 15 July. At 4.44pm on 22 July Ms Cordelle filed on behalf of Mr Gorrie an application for production directed to the Costs Applicant with 60 separate items. At 7.30am on 23 July Ms Cordelle filed a further application for orders seeking two further documents.

Submissions were filed by the parties in respect of the separate applications and a decision was issued on 2 August. It is apparent from the decision that Ms Cordelle raised a range of objections including relevance, that the orders were a fishing expedition, oppressive, and that some documents could be produced by the other party. Whilst it is apparent that in the main these submissions were rejected, and the arguments never appeared strong, the arguments that Ms Cordelle put on behalf of the First Costs Respondent were at least entitled to be heard and determined in the attempt to resist the production orders.

Whilst I have already rejected by force of earlier findings many of the arguments put by Ms Cordelle as to why she should not be subject to a costs order, for the reason alone that the First Costs Respondent was entitled to at least have the objections heard and determined as an interlocutory matter prior to the substantive hearing, I refuse to order costs against Ms Cordelle on this basis.

Ground 7: Ms Cordelle failed to properly advise Mr Gorrie as to how his failure to comply with the first production order critically undermined his claim

Once Mr Gorrie failed to comply with the First Production Order, Multihull submitted that it was incumbent on Ms Cordelle to properly advise Mr Gorrie as to how that conduct critically undermined his claim. It was not apparent that she did so, and that unreasonable conduct caused Multihull to incur costs thereafter.

Ms Cordelle refuted she had failed to properly advise Mr Gorrie as to how his failure to comply with the First Production Order critically undermined his claim. Ms Cordelle claimed Mr Gorrie preferred to have his claim undermined rather than to discontinue before obtaining a settlement/financial benefit, which was his primary goal.

Ms Cordelle stated that Mr Gorrie was fully and properly advised from the onset of the matter and throughout the matter that a costs order could be sought against him if he unreasonably continued and or discontinued the matter, and he preferred to keep continuing the matter despite advice in the hope his primary goal of achieving settlement would come to pass.

Ms Cordelle gave evidence that Mr Gorrie would regularly claim “I will never give up!” and discontinuance was “not an option” and was insistent on obtaining at least some financial benefit from Multihull through the unfair dismissal claim in spite of advice received. Ms Cordelle advised that as Mr Gorrie has been exposed for being dishonest and deceptive with Multihull and was caught out selling vessels in competition with Multihull, he had hoped he would get away with it, but it ultimately resulted in his termination.

According to Ms Cordelle Mr Gorrie;

· submitted doctored excel spreadsheets of invoices instead of the true invoice list which he had both electronic and hard copies of, while stating in his own affidavit that he did not have hard copies, was very unwell, did not know how to retrieve them from Quickbooks and had changed software to Xero; and
· refusing to submit documents and instructing both Ms Cordelle and his Accountant to not submit them.

Ms Cordelle submitted that Mr Gorrie is attempting to avoid or minimise a costs application as to his conduct with further false and misleading claims trying to shift his responsibility onto Ms Cordelle, hoping to get away with it, until being caught out through the statement and evidence filed by Ms Cordelle.

As already stated, I prefer Mr Gorrie’s evidence where it is in conflict with Ms Cordelle for reasons set out above. At the mention hearing listed before the Commission on 2 September 2021 the Costs Applicant complained that the First Costs Respondent had not complied with the first set of orders for production of 2 August.

It was put to Ms Cordelle in the course of the hearing on 2 September where Mr Gorrie was not present, that A Notice of an Assessment of Tax is not a Tax Return. Ms Cordelle responded she was not a Tax Agent and the Applicant believed a Notice of an Assessment of Tax in response to Order 2 is a Tax Return and Ms Cordelle indicated she had no knowledge and understanding of these issues. Order 2 was clear it sought Tax Returns. Ms Cordelle indicated that Mr Gorrie thought the Notices of Assessment was what was required.

No documents were filed in relation to Order 1 which were the Tax Returns for the Trust. I asked Ms Cordelle if the documents could be produced by the following Wednesday and she responded that Mr Gorrie was not available until after the following Thursday and they could be produced for Mr Gorrie by the following Friday, but Mr Gorrie could not produce Tax documents for the Trust. Ms Cordelle submitted Mr Gorrie did not have control of the Trust and therefore he could not produce the Tax Returns.

I suggested to the Costs Applicant’s Lawyer that they could seek another order for production and they indicated that they would do so and asked if Ms Cordelle’s client could provide the identity of the Trustee for the Trust.

The Cost Applicant also complained about a failure to comply with Order 4 for Invoices issued by the Trust for services outside the client. It was said Mr Gorrie produced a helpful spreadsheet however a number of invoices were not listed on the spreadsheet and invoices themselves were not provided for clients other than Greensphere. Ms Cordelle said without having instructions from Mr Gorrie, that is what would have been provided. The Costs Applicant said that a spreadsheet format was acceptable but information relating to invoices provided to other entities need to be provided.

Ms Cordelle submitted that she could respond by the following Friday as well. Ms Cordelle indicated that she believed all were provided but would confirm.

The Costs Applicant also complained that the Trust Deed was not produced. I suggested to the lawyer for the Costs Applicant that if the Applicant says they don’t have the Trust Deed, the Costs Applicant could seek a new order to have it produced by another entity.

The Costs Applicant’s lawyers appeared to accept that they may need to make a fresh application to seek production against other members of Mr Gorrie’s family.

Ms Cordelle said it was her instructions that Mr Gorrie did not have the Trust Deed. Ms Cordelle said Mr Gorrie had instructed her that he had made enquiries about the Trust Deed and that no one had a copy.

I have already found that I prefer Mr Gorrie’s evidence over Ms Cordelle’s. It is my view that it is more likely than not that Ms Cordelle knowingly withheld from filing documents that Mr Gorrie had already provided to her on 6 August.

At the mention hearing, Ms Cordelle indicated to the Commission that both Mr Gorrie and herself understood a Notice of an Assessment of Tax would satisfy the order for production of Tax returns.

It seems from Ms Cordelle’s version of events given in the costs hearing, that both Mr Gorrie and herself understood that the documents being filed in response to the first order did not comply with the Commissions orders, however she should not be held to account for failing to produce certain documents because they were withheld because Mr Gorrie instructed her not to produce them and refused to provide them. However, this evidence is inconsistent with the evidence concerning what Mr Gorrie had sent to Ms Cordelle weeks earlier on 6 August. Ms Cordelle had many of the documents by 6 August that were not filed as required by the First Order.

I am satisfied ground seven is a basis to award costs against Ms Cordelle as Mr Gorrie’s paid agent, because I am satisfied it is more likely than not that Mr Gorrie did not instruct Ms Cordelle to not file documents required, and it is more likely Ms Cordelle curated documents filed with the Commission. As a paid agent who claimed to be experienced in employment matters, Ms Cordelle must have known, or should have that there was no viable option to choose not to comply with the Order, and if there was any suggestion to do so by Mr Gorrie to his advisor it should have been swiftly rebuked by Ms Cordelle. I think it is less likely that such a discussion occurred between Mr Gorrie and Ms Cordelle and it is more likely that Ms Cordelle’s knowingly filtered documents provided to her, as it was Ms Cordelle who filed the documents on behalf of Mr Gorrie. Even if such a discussion did occur which I have not accepted, it would have been incumbent on Ms Cordelle to properly advise Mr Gorrie that the law required him to comply with the Order.

It is worth noting when reviewing email exchanges including with chambers in the course of the matter, that for the most part Mr Gorrie was not copied into communications between the representatives and chambers. The notable exception to this is notices of listings from chambers which did include Mr Gorrie’s email address.

This act by a paid agent in not filing documents the paid agent had in their possession in response to an order for production by the Commission is an unreasonable act or omission causing costs to be incurred by the Costs Applicant.

CONCLUSION

The general rule in unfair dismissal cases is that the losing party is not required to pay the costs of the other party.

In closing submissions, the Costs Applicant said despite the Application not having been made under s.611 it was open to the Commission to also consider making an order under s.611. The First Costs Respondent submitted that as the application is made under s.400A against the First Costs Respondent, notwithstanding s.400A(3), as the Costs Applicant has had plenty of time to reframe the application under s.611, without that notice the First Costs Respondent has limited his submissions to the material provided by the Costs Applicant and the Commission ought to limit its consideration to s.400A and s.401.

I have concluded not to award costs against the First Costs Respondent under s.400A or 611. Putting aside the procedural fairness issue raised by the First Costs Respondent, in any event for the reasons I have set out above rejecting costs under s.400A, I am not satisfied that there would be a basis to award costs against the First Costs Respondent under s.611.

Ms Cordelle submitted to the Commission on 2 September 2021, that Mr Gorrie did not have access to the tax returns and claimed not to understand that notices of assessments were not tax returns.

The Costs Applicant highlighted the deliberate nature of Ms Cordelle’s conduct when she said to the Commission on 2 September that Mr Gorrie didn’t have the Tax Returns when in fact he did, and that Mr Gorrie didn’t have access to the Trust Deed when he had it, and the evidence is she mislead the Commission.

Ms Cordelle submitted in her defence that her experience is in the General Protections jurisdiction and not in the Unfair Dismissal jurisdiction. Ms Cordelle has raised an allegation that she felt threatened by Mr Gorrie, and that she felt vulnerable in connection with the tenancy arrangement involving Mr Gorrie and this was a reason she did not feel she could withdraw from acting for him, and she felt trapped in the matter.

I am not persuaded by this evidence. The documentation before the Commission indicates from written communications between Ms Cordelle and Mr Gorrie that from the time she commenced to act for Mr Gorrie, Ms Cordelle had significant influence with Mr Gorrie as to how the matter should be conducted, and it appears at least until the relationship deteriorated over a tenancy dispute and Mr Gorrie losing confidence in Ms Cordelle in September 2021, that Mr Gorrie was following advice from Ms Cordelle.

I am satisfied that the conduct of Ms Cordelle warrants an order for costs, however I do not intend to order costs on an indemnity basis. This is not a case where it could be said there was no legal basis for the First Costs Respondent’s case. However, Ms Cordelle’s actions contributed to the Costs Applicant having to prepare and file a second application for production which included documents which Ms Cordelle should have ensured were produced in response to the first order for production. Whilst it may be open to conclude that indemnity costs could be ordered against Ms Cordelle on account of her conduct, in addition to the finding that the case was not hopeless, I am also not inclined to exercise my discretion to do so in circumstances where on review of the submissions at the hearing on 2 September it would appear likely that even had the documents been produced, a second application for production would in all likelihood have been forthcoming in any event. I am also persuaded by the fact that it appears from the evidence Ms Cordelle is a student with limited financial means to pay a substantial order for costs, and contrary to her claims to Mr Gorrie, she appeared to lack expertise in conducting proceedings in the Commission.

The Costs Applicant has also sought costs in connection with the conduct of the costs application itself. Consistent with earlier decisions of this Commission, I do not intend to order costs associated with an application pursuing costs.[25]

I intend to confine costs against Ms Cordelle to costs incurred by the Costs Applicant between the dates of 7 August 2021 (the day after the first order required production) and 9 September 2021 (the date of the filing of applications for further production orders) in relation to preparing and filing the further applications for orders for production.

The costs are to be confined to only those costs incurred in relation to the further applications for production as they pertained to documents that it is apparent from this decision Ms Cordelle already had but did not produce and should have produced in response to the First Order of 2 August. This includes the documents sent by Mr Gorrie to Ms Cordelle on 6 August that were responsive to the first production order, but does not pertain to any costs incurred by the Cost Applicant in connection with the further production applications, that pertains to the seeking of documents that were not required, or able to be produced by Mr Gorrie in response to the first production order.

The Costs Applicant is directed to prepare a Schedule of Costs in accordance with s.403 of the Act as prescribed in Schedule 3.1 and provide this to the Second Costs Respondent within 7 days. Additionally, the Costs Applicant is directed to consult with the Second Costs Respondent and advise my chambers if agreement as to the amount of costs to be paid is reached by Monday 13 June 2022. In the event of any dispute regarding the amount of costs, the parties will be afforded the opportunity to make brief submissions on the areas of dispute and the Commission will settle the costs.

COMMISSIONER

Appearances:

Ms Megan Brooks of Counsel instructed by Ms Clare Chalk of Aitken Legal for the Costs Applicant.

Ms Margaret Forrest of Counsel instructed by Ms Zosia Kilmartin of Kilmartin Knyvett Lawyers for the First Costs Respondent.

Ms Sue Cordelle on her own behalf.

Hearing details:

2022
Brisbane (by Telephone)
9 March

[1] Exhibit 1.

[2] Exhibit 2.

[3] Exhibit 3.

[4] Exhibit 4.

[5] Exhibit 5.

[6] Exhibit 6.

[7] [2022] FWC 52 at para [7].

[8] Exhibit 4 attachment KG 36.

[9] Exhibit 4 attachment KG 39.

[10] Exhibit 4 attachment KG 39.

[11] Exhibit 4 attachment KG 39.

[12] Exhibit 4 attachment KG 35.

[13] Exhibit 6 paragraph 38-39.

[14] SC-57.

[15] SC-63.

[16] Exhibit 4 attachment KG 36.

[17] Exhibit 4 attachment KG 35.

[18] Exhibit 4 attachment KG 38.

[19] Exhibit 4 attachment KG 38.

[20] See Statement of Sue Cordelle dated 8 February 2022 at SC-81 and SC-64.

[21] Submission of Kelvin Gorrie dated 24 January 2022, at [11] to [13].

[22] Statement of Sue Cordelle dated 8 February 2022, SC-57 and SC-64.

[23] SC-37.

[24] See Statement of Sue Cordelle, dated 8 February 2022, SC-81.

[25] [2012] FWA 10164.

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