Loretta Roos v Winnaa Pty Ltd
[2018] FWC 7739
•19 DECEMBER 2018
| [2018] FWC 7739 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections (consent arbitration)
Loretta Roos
v
Winnaa Pty Ltd
(C2017/302)
| COMMISSIONER SIMPSON | BRISBANE, 19 DECEMBER 2018 |
Application for Costs.
This matter involves applications for costs filed on 19 June 2017 by Loretta Roos under s.375B against Winnaa Pty Ltd, and by Loretta Roos under s.376 against Dillion Bowers Lawyers. I will briefly set out some background to matters surrounding these costs applications as it is useful for the purpose of determining the matter.
In August 2016, Loretta Roos, Andrew Roos and Bree Dargan made applications under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with General Protections applications involving dismissal in accordance with Part 3-1 of the Act. The Form F8A filed in response to the August 2016 applications erroneously identified the Respondent as the Barada Barna Aboriginal Corporation T/A Winnaa Pty Ltd and stated the Respondents representative was Dani Jones of Dillion Bowers Lawyers (Dillion Bowers).
The three separate applicants in their substantive applications were ultimately successful in each matter (see [2018] FWC 3568), and the three applicants were subsequently awarded remedies (see [2018] FWC 5692). The decision on remedy is currently the subject of an appeal by two of the three applicants in the substantive matters. As stated the costs application was made by one of the three applicants in the substantive matters, Ms Roos. For the purposes of these costs applications, it is only necessary to deal with events up to and including an interlocutory hearing on 5 June 2017 for a revocation order made by Ms Roos under s.603 of the Act.
On 18 January 2017, following unsuccessful private conferences, Loretta Roos filed an application for consent arbitration under s.369. Under the heading of representatives details the Form F8B identified her representative as being Legal Aid Queensland. The form repeated the earlier erroneous identification of the Respondent as being Barada Barna Aboriginal Corporation T/A Winnaa Pty Ltd. Andrew Roos and Bree Dargan also made separate applications for consent arbitration.
The matter was allocated to my chambers on 27 February 2017 and listed for a directions hearing on 3 March 2017. On 1 March 2017 a Form F53 Notice of representative commencing to act was filed identifying Christian O’Callaghan of Legal Aid Queensland as the representative of Loretta Roos and naming the other party as Barada Barna Aboriginal Corporation RNTBC T/A Winnaa Pty Ltd. The signature block identified Janette Fadden, a Solicitor of Legal Aid Queensland, as having completed the form.
At the directions hearing, Ms Muirhead sought permission to represent Loretta Roos. Andrew Roos and Bree Dargan were both self-represented at this stage. Mr John Dwyer of Counsel sought permission to represent the Respondent, instructed by Ms Jones of Dillion Bowers.
Both parties seeking to be represented by a lawyer were invited to make submissions on the matter at the directions hearing. Both made brief submissions and no objection was taken by any party to the granting of permission. I issued a brief oral decision granting permission for Loretta Roos and the Respondent to be legally represented on the basis that it would enable the matter to be dealt with more efficiently, taking into account the complexity of issues in connection with s.351.[1] That day directions were settled and issued for the filing of material and the hearing of the matter on 23 and 24 May 2017.
On 16 March 2017, Dillion Bowers sent email correspondence, with an attached letter , to the Commission advising that the Respondent had been incorrectly identified in the applications and proposing the applications be amended to reflect the correction. On 22 March 2017, Legal Aid Queensland sent email correspondence to the FWC advising Loretta Roos did not object to the amendment proposed by the Respondent. On 23 March 2017, email correspondence was sent from my Chambers advising that it was for the Applicants to make the application to amend their applications.
On 4 April 2017, Legal Aid Queensland filed a Form F48 Application for directions on procedure on behalf of Loretta Roos. The application advised that it was being made because the Applicant was in doubt about the proper procedure to follow. The application advised of a meeting that had been scheduled for April 2017 where a vote of the Barada Barna people was due to take place concerning the Applicant’s membership of the Barada Barna Aboriginal Corporation. The application stated that the meeting was now postponed until 29 April due to severe weather events.
Further, the Applicant wished to amend the name of the Respondent to the correct employing entity, and seek to add further respondents pursuant to s.550 of the Act.
The application stated that the Applicant objected to the Respondent being granted permission to be legally represented and sought that the Commission make a decision on legal representation. The application proposed the existing directions be vacated and new directions issued including for a hearing to determine the applications to amend, the application to add further respondents, and the application to determine legal representation.
I listed the matter for a further directions hearing at 2pm on 20 April 2017. On 19 April 2017, Legal Aid Queensland filed draft directions for the filing of evidence and submissions in relation to the three separate issues of legal representation, as well as an application to join further respondents to the matter, and amending the name of the Respondent. Prior to the commencement of the hearing on 20 April, Dillion Bowers sent email correspondence to my Chambers advising they consented to the amendment of the Respondent’s name, and proposed a timetable for the filing of evidence and submissions on the legal representation and joinder issues.
At the directions hearing, I exercised power under s.586 to amend the applications to reflect that the Respondent named in each application was Winnaa Pty Ltd.[2]
Also at the directions hearing, Counsel for Loretta Roos pressed objection to the Respondent being represented, and pressed its proposed timetable for filing material. It was apparent from the draft directions and the transcript that both Counsel for Loretta Roos and Counsel for the Respondent presumed permission for leave had not yet been granted. Mr Dwyer, for the Respondent, also brought to the attention of the Commission for the first time, an issue that had been the subject of correspondence between the parties about the standing of Dillion Bowers to be involved in the matter on the basis of allegations of conflict of interest and breach of professional rules. Mr Dwyer said that the Respondent took issue with it and had not heard any more.[3]
In regard to the matter of additional respondents being joined to the claim, I raised a jurisdictional issue concerning the requirement for a certificate to have been issued in relation to the dispute and the parties having agreed to arbitration.[4] Mr Ken Watson, for Loretta Roos, sought for the matter to be programmed and proposed the matter would take half a day.[5] I advised the matters would be heard on 5 June 2017 and the hearing dates for the substantive matter on 23 and 24 May 2017 were vacated.
The directions hearing concluded at 2.27pm. At 3.33pm Dani Jones, a Solicitor with Dillion Bowers, sent email correspondence to my Chambers identifying that leave to be represented had been previously granted by the Commission at the Directions hearing on 3 March 2017, and that the only issue (regarding representation) was any new objection to the Respondent being represented. The correspondence proposed that the directions issued should reflect this and apologised for not raising the matter at the directions hearing that day.
At 4.28pm on 20 April 2017, my Associate sent email correspondence to the parties advising, among other things, that I had listened to the audio transcript of the directions hearing on Friday 3 March 2017 and confirmed that Loretta Roos and the Respondent were granted leave to be legally represented, and that I considered it appropriate to amend the directions as suggested by the Respondent. The email correspondence requested that Loretta Roos’ representative advise whether they were agreeable to the amendment.
At 4.32pm, email correspondence was received from Mr O’Callaghan of Legal Aid Queensland objecting to the amendment and setting out a number of grounds including that Loretta Roos was not represented at the directions hearing on 3 March 2017, and that the s.369 application was a separate matter to the s.365 matter. Mr O’Callaghan subsequently sent email correspondence the following day, at 8.32am, accepting that he was mistaken about Ms Roos not being represented at the directions hearing on 3 March 2017.
On 21 April 2017, email correspondence was sent to the parties from my Chambers confirming the proceedings on 3 March were a directions hearing, that Loretta Roos was legally represented, and that both Loretta Roos and the Respondent were granted leave under s.596 without any conditions. I subsequently issued directions on 21 April 2017 regarding both interlocutory issues. The directions with regard to the representation issue were for Loretta Roos to file and serve any objections to the continued legal representation of the Respondent by its current legal representatives by 4pm on Friday 19 May 2017, and for the Respondent to file and serve any submissions in response to the objections of the Applicant in C2017/302 by no later than 4pm Friday 26 May 2017.
On 4 May 2017, Mr O’Callaghan sent email correspondence to my Chambers advising that his client, Loretta Roos, would not be pursing her interim application to add respondents to the proceedings and was formally withdrawing that aspect of the interim application. Mr O’Callaghan did confirm however, that Ms Roos was proceeding with the application for a revocation of the decision to grant legal representation and would file and serve material by 19 May 2017.
On 19 May 2017, written submissions and a witness statement from Loretta Roos were filed in support of the application for revocation. I will deal with these submissions in more detail below. On 26 May 2017, written submissions and a witness statement from Jeffery Dillion were filed on behalf of the Respondent.
On Friday 26 May 2017, Legal Aid Queensland sent email correspondence to my Chambers requesting that Loretta Roos be allowed to give her evidence by video-link from the Innisfail Court House.
On 29 May 2017, Legal Aid Queensland, on behalf of Loretta Roos, filed an F52 application for production of documents directed at The Proper Officer of the Barada Barna Aboriginal Corporation and Les Budby and Cecil Budby. The documents sought included all witness statements/affidavits and submissions filed in the Federal Court native title claim, as well as all genealogical and anthropological reports, a list of other documents described in Schedule 1 of QUD380 of 2008 and the minutes of a meeting on 11 August 2016. Orders to require certain persons to attend to given evidence were also sought.
On 30 May 2017, I directed email correspondence to the parties granting permission for Loretta Roos to give evidence by telephone. I also directed my Associate to send the following correspondence to the parties:
“Dear Parties
I refer to the abovementioned matters.
The representative for Ms Loretta Roos has lodged draft orders under subsection 590(2) requesting the Commission inform itself by issuing orders that certain persons are required to attend before the Commission at the hearing of the interlocutory application scheduled for next Monday 5 June, 2017, and certain persons provide copies of a range of documents by noon tomorrow 31 May 2017.
The Commissioner advises that he has decided to deal with the applications for orders to attend and orders to produce this way.
The Commissioner has declined to issue the orders at this stage as he is not yet satisfied that the orders are required to assist in deciding the interlocutory matter as to whether he should revoke his earlier decision to grant permission for the respondent to be legally represented.
The Commissioner has directed that the applications for orders be provided to the respondent’s representatives. The draft orders and supporting documents have been attached to this email.
The hearing will proceed on 5 June and the Commission will hear evidence as filed in accordance with earlier directions.
The Commission will then hear evidence from the parties, including whether the matter can be determined on the evidence and submissions at that point or alternatively that it cannot be determined and the orders should be issued. In the event that it is determined that the orders should be made directions will be issued for a further hearing date at that time.
…..”
On 31 May 2017, my Chambers received a request by email from Dillion Bowers that Mr Dillon be allowed to give his evidence by telephone or video link from the Townsville Court House. I directed that email correspondence be forwarded to parties indicating I was minded to allow Mr Dillon to give evidence in the manner as requested, given that Ms Roos had also been permitted to do so.
At 5.20pm on 31 May, Mr O’Callaghan sent email correspondence to Chambers objecting to Mr Dillion being permitted to give evidence by video-link, and seeking his attendance at the hearing on 5 June 2017 on the basis of the status of the requested notice to produce and its overlap with the documents Mr Dillon referred to in his evidence as filed.
Also on 31 May, a further 10 page affidavit of Mr O’Callaghan was received by my Chambers, which was made in support of the application for a revocation order attaching other documents. No application for leave to file further material had been made.
On 1 June 2017, I directed my Associate to send the following correspondence to the parties:
“Dear Parties
Chambers has received further correspondence from the applicant in the matter C2017/302 objecting to the respondent’s witness attending by telephone or video conference and filing a further witness statement.
The Commissioner notes that the directions required that the applicant file its material on the interlocutory issue of legal representation by Friday 19 May.
The Commissioner has given further consideration to the application concerning the interlocutory matter of legal representation after reviewing the submissions and statements filed.
The Commissioner advises that he has formed a preliminary view that he may decide to determine the matter without the need for the hearing of evidence. This is not a concluded view.
On the basis of the Commissioner’s preliminary view, he has decided that the hearing scheduled for 10am on Monday 5 June 2017 will be confined to the making of oral submissions, including submissions on whether the Commissioner needs to hear evidence to determine the matter.
The Commissioner advises he is prepared to allow representatives to appear by telephone. If parties wish to appear by telephone, please provide chambers with your best telephone number by no later than close of business tomorrow 2 June 2017.
In the event the Commissioner determines evidence is required, a further hearing date will be listed.
…………..”
As is apparent from the email sent to the parties, the hearing on 5 June was for the purpose of hearing submissions only. At the hearing the applicant was represented by Mr Watson of Counsel and the Respondent was represented by Mr Barlow Queens Counsel and Mr Dwyer of Counsel.
A summary of the written submissions filed for the Respondent in response to the material filed for Ms Roos included the following:
i.The proper way to oppose a particular representative appearing would be by way of seeking injunctive relief in the Court that supervises the conduct of solicitors, being the Supreme Court of Queensland;
ii.The Commission considered the matters under s.596 on 3 March 2017 and granted permission;
iii.The Commission cannot apply a discretion under s.596 against a representative;
iv.Considerations as to the representative are not set out in s.596(2) as matters it can take into account to inform its discretion and the Commission does not have power to make a decision about representation that is founded on the identity of the representative and the whole basis of the application is an irrelevant consideration which, if applied would constitute a legal error;
v.The basis on which the Applicant seeks to exclude Dillon Bowers – an alleged conflict of interest – is not a relevant criterion under s.596;
vi.The power under s.603 should not be used to re-litigate the original case or raise a new argument not put at the original hearing when it could have done so;
vii.Nothing has changed since the decision to grant permission;
viii.Ms Roos was represented at the hearing on 3 March 2017 and was aware then that Dillon Bowers were solicitors for the Respondent;
ix.Ms Roos legal representative was squarely asked if there was any objection to the Respondent having legal representation and said no;
x.In the circumstances the Commission does not have power under s.603, or alternatively should not exercise its discretion to revoke the order;
xi.In the event the Commission does not accept the foregoing submissions the Commission would need to consider the merits of the application;
xii.The Native Title proceedings were not about who are in fact now current members of the Barada Barna claim group and the matter of who is accepted as a member is a matter for the group itself not the Court;
xiii.The central considerations in the general protections consent arbitration are different and the two proceedings are neither the same or closely related; and therefore a conflict does not arise;
xiv.Ms Roos was not a client of Dillon Bowers;
xv.Ms Roos did not give confidential information to Mr Dillon;
xvi.There is no conflict of fiduciary duty;
xvii.A proper administration of justice consideration is not invoked;
xviii.The application to revoke the decision to grant permission should be dismissed.
The evidence Mr Dillion foreshadowed was contained in a six page statement.
At the commencement of the hearing, a technical issue arose with the recording of the proceedings resulting in the first few minutes of the hearing not being recorded and requiring a brief adjournment. At the commencement of the hearing, I raised a number of preliminary matters to invite submissions from the parties. The issues were;
i.Given a number of decisions of the Commission, including NSW Bar Association v McAuliffe[6] and QGC v AWU,[7] have observed that the Commission does not have power to choose who the lawyer will be that represents a party, how does the Commission have power to revoke an earlier decision on legal representation when the identity of the representative is the issue at the heart of the application?
ii.Why could the Applicant not seek injunctive relief in the Supreme Court of Queensland if it wanted to oppose the Respondent’s solicitors representing the Respondent on the basis of an alleged conflict of interest?
iii.Why could the applicant not seek to progress the issue with the Queensland Law Society?
In response to the first issue concerning the power to revoke a decision under s.596 based on the identity of the representative, Mr Watson submitted firstly that permission was granted at the hearing on 3 March 2017 and that since that time the name of the Respondent has been amended by consent. It was also said, however, that the issues raised by both the Commission and the submissions, go to whether the character of the legal representative is something that can be taken into account. On that point it was submitted that, where a party can satisfy one or all of the matters in s.596(2), the Commission still retains a general discretion whether or not to grant permission and this general discretion includes an ability to take into account the identity of the representative.
In response to whether the matter should have been pursed in another way, Mr Watson submitted that s.596 is the only mechanism to ventilate the matter in the Commission, the Commission is seized of the matters in the consent arbitration which involve the very issue of whether Ms Roos was Barada Barna. Further it was submitted that, while the Supreme Court had jurisdiction over such matters, that would incur costs and s.577 requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. It was also submitted that if a remedy was pursued in the Supreme Court, it could only be for an injunctive remedy and that is a discretionary remedy and not one given as of right.
I asked Mr Watson whether the Commission could be directed to any authorities where the Commission has dealt with this issue previously and he advised he was not aware of any.[8]
Mr Barlow, for the Respondent, made submissions in response on the preliminary issues raised, namely that the Commission does not have power to undo the preliminary decision (to grant permission) because there are no new facts to overrule the decision. It was accepted that the Commission has discretion whether or not to give leave, however Mr Barlow submitted that the time for the exercise of that discretion was on the occasion of the hearing where the decision was made.
Mr Barlow submitted in regard to the matter of the Respondents name having been amended, that the argument falls at the first hurdle because in the Form F8 Winnaa Pty Ltd is identified as the trading name, which Mr Barlow contended was a simple misdiscription and that consequently Winnaa has always been a party to the proceedings. Further, in any event, it doesn’t change the assessment of the relevant issues concerning the basis for the objection.
Mr Barlow also submitted that the issue of whether Ms Roos was Barada Barna was not an issue in the proceedings, contending instead that the issue was whether the Respondent had a lawful excuse for dismissal. Mr Barlow further emphasised the written submission that the Supreme Court, and possibly the Federal Court given the background of the native title claim, is the Court that governs the conduct of solicitors and counsel.
Mr Barlow submitted that the interlocutory application could be determined without the need for any oral evidence in cross examination because it was not going to answer the question and that the Commission doesn’t have the power in any event.[9]
I determined to hear the remainder of the oral submissions from both parties. The oral submissions for Ms Roos spoke to the previous written submissions filed for Ms Roos and in response to the Respondents material. Oral submissions expanding on the written submissions included that the question of being Barada Barna was relevant to the proceedings.
In response to the Respondent’s submission that no new matters have arisen since the grant of permission on 3 March, it was put that at a meeting on 29 April 2017 Ms Roos and others were disenfranchised from the BBAC.[10] A Full Bench decision in Oratis v Melbourne Business School[11]was also relied upon, specifically where the Full Bench observed it was open to an applicant in an unfair dismissal case to make an application under s.603 to revoke a decision under s.596 and for it to be considered on its facts.
The decision in Mrs Inna Grabovsky v United Protestant Association of NSW Ltd[12] was also referred to, specifically where President Ross J discussed the power to vary or revoke having been exercised in circumstances including a decision being based on incomplete or false information. It was submitted that Ms Muirhead, of Legal Aid Queensland, did not have the Respondent’s F8A response to the application at the time of the hearing on 3 March 2017 when permission was granted.
Ms Roos submissions also referred to the Native Title Act 1993 (Cth.) (the Native Title Act), for the purposes of describing who can make a native title claim and determination of who the persons holding the rights are.[13] The submissions referred to the contents of Ms Roos’ statement where Ms Roos discusses the native title claim and says in it that at no point in the process did Mr Dillon or anyone else bring to her attention that her ancestral connection was in question.
Mr Watson referred to correspondence, dated 22 March 2017, from Dillon Bowers to Legal Aid Queensland where a client relationship with Ms Roos was denied, and which also raised that doubts about Kitchener Brown’s ancestry were before the Federal Court. Ms Roos’ statement includes that she will be saying that this was never brought to her attention.
It was further submitted that the outcome of the Consent Determination was that the Barada Barna Aboriginal Corporation would hold the native title in trust for the Barada Barna people.[14] The submissions referred to a journal article from the Australian Law Journal to support the contention that, whilst it was accepted that Ms Roos was not a client of Dillon Bowers as an individual, she was part of the native title claim group and the group was the client.[15] It was also submitted that 10 of the 16 statements filed on the native title claim referred to Kitchener Brown as Barada Barna, and the native title claim was run on that basis.[16] It is notable that Dr Sackett’s report raised the prospect that Kitchener Brown was not Barada Barna.
Ms Roos submissions also referred to a number of decisions including the judgement of Bromberg J in a Full Court of the Federal Court decision in Gomeroi People v Attorney-General of New South Wales[17] as well as the judgement of Mason J in the High Court decision in Hospital Products Limited v United States Surgical Corporation and Others[18] and the judgement of Lord Justice Millett in Bristol and West Building Society v Mothew[19] to submit that the solicitor/client relationship is a fiduciary relationship and Mr Dillon had a responsibility to Ms Roos to act in good faith.
The submission then addressed the matter of whether the relationship between Dillon Bowers and Ms Roos was ongoing,[20] and referred to the interests of the common law holders of a trust and the role of the trustee. The submissions also referred to a decision of the Full Court of the Federal Court in Western Australia v Graham[21] where the Judgment includes a consideration of the requirement in s.225 of the Native Title Act to make a determination that includes who the persons, or each group of persons, holding the common or group rights comprising the native title are.
It was submitted, for Ms Roos, that if there was doubt about the matter it should have been raised with the Court. At the conclusion of submissions for Ms Roos, the matter was adjourned for a lunch break. At the resumption of the hearing, Mr Barlow, for the Respondent, advised the Commission that he had obtained further instructions and, while Mr Dillon did not accept he had a conflict or that there was any reason for him to withdraw other than the fact that this was a costly exercise and that it is likely to delay the final determination, his client and Mr Dillon had taken the practical step of withdrawing as solicitor for the Respondent in the proceedings.[22] Mr Watson indicated that would satisfy the present objection to legal representation.[23]
As stated earlier, subsequent costs applications were filed on 19 June by Loretta Roos under s.375B against Winnaa Pty Ltd and by Loretta Roos under s.376 against Dillion Bowers Lawyers. The applications were held over until the conclusion of the substantive matter. The matter was subsequently called on for directions on 16 October 2018 and directions were issued for the filing of material. The parties foreshadowed at the directions hearing there may be need to file evidence however the matter may be able to dealt with on the papers. No evidence was filed by the parties who have relied on submissions to determine the costs issue.
Submissions on Costs
The Form F6 application for costs filed on 19 June 2017 by Mr O’Callaghan identified the Applicant as Loretta Roos. The application clearly identified that it was made under s.375B against Winnaa Pty Ltd as the Respondent, and under s.376 against Dillon Bowers as the Respondent’s lawyers. The grounds of the application against the Respondent at paragraph 10 made clear the Applicant relied on s.375B and contended that the Respondent caused unnecessary and considerable costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the dispute. The unreasonable acts or omissions, as set out in the application, were said to be:
i.The Respondent failing to cease instructing Dillon Bowers in relation to the Applicant’s general protections application as soon as it was advised of the Applicants objections to Dillon Bowers representing the Respondent;
ii.The Respondent failing to cease instructions at any time since it first became aware of the Applicants objections; and The Respondent withdrawing instructions from Dillon Bowers halfway through the hearing on 5 June 2017 without defending the application.
It was also put that the Respondent was delinquent in its conduct of the matter.
The grounds for costs against Dillon Bowers clearly state, at paragraph 5 that the Applicant relied on s.376 and contended that Dillon Bowers unnecessarily caused the Applicant to incur considerable costs because of its unreasonable acts or omissions in connection with the conduct or continuation of the dispute. The application set out the unreasonable acts or omissions as being:
i.Dillon Bowers failing to refuse instructions from the Respondent in relation to the Applicant’s general protections application when it was first approached by the Respondent in relation to the matter;
ii.Dillon Bowers failing to refuse instructions from the Respondent in relation to the Applicants general protections matter as soon as it became aware of the Applicant’s objections to Dillon Bowers representing the Respondent;
iii.Dillon Bowers failing to refuse instructions at any time since it first became aware of the Applicants objections; and
iv.Dillon Bowers withdrawing from acting for the Respondent halfway through the hearing on 5 June 2017.
It was also put that Dillon Bowers was delinquent in its conduct of the matter.
At the directions hearing on 16 October 2018 Mr O’Callaghan raised that the costs applications were on behalf of Ms Loretta Roos and Mr Andrew Roos. I indicated that the only application made for costs before the Commission was for Ms Loretta Roos. Mr O’Callaghan indicated he had been on leave and apologised if he was mistaken. I indicated I was proceedings on the basis of the application as made by Ms Roos and the matter was left on that basis that Mr O’Callaghan could revisit the issue once he had considered the matter further. No further argument was received regarding the matter of a costs application also having been made on behalf of Mr Andrew Roos. Despite this the Applicants submissions of 2 November 2018, identified the submissions as having been made for Loretta Roos and Andrew Roos. The submissions also indicated that the applications were brought under ss375B and 611 of the Act, despite the application of Ms Roos making no reference to s.611. The submissions did not however make reference to s.376 as the originating application did.
The body of the submissions referred to a decision in Crowe v MG Medical Group Pty Ltd[24]. The submissions emphasised that the Applicant had clearly flagged to the Respondent, once the application under s.603 was made, its opposition to the Respondent engaging Dillon Bowers. It was also submitted that, from the time of receipt of the statement of Ms Roos, the Respondent was on notice of the alleged involvement of Mr Dillon.
The submissions further referred to the written submissions in the revocation application, raising the issues of fiduciary duty and the proper administration of justice. It was submitted that the reasons given by the Counsel for the Respondent at the hearing of 5 June 2017 were reasons that were already known by the Respondent, as they were in the written outline and statement of Ms Roos, and by not making the concession earlier significant legal costs were incurred and that was an unreasonable act or omission as set out in s.375B(1)(b).
The submission concerning s.611 of the Act was that, by opposing the application to revoke legal representation, the Respondent was without reasonable cause or it should have been reasonably apparent that the opposition had no reasonable prospect of success.
It was further said that an inference could be drawn that, where notice of the Applicant’s arguments was given, and without making a meaningful response to the submissions, it can be inferred the response was without reasonable cause or that it should have been reasonably apparent to the Respondent it had no reasonable prospect of success.
The Respondent’s written submissions of 23 November 2018, raised the procedural issues I have discussed above concerning the application as filed not seeking costs under s.611 and submitted on that basis no relief should be provided under s.611.
The Respondent’s submissions retraced the chronology of the matter, and referred to its written submissions filed on 26 May 2017 in opposition to the revocation application, and then to the reasons, as stated by Mr Barlow QC, for Dillon Bowers ceasing to act as a ‘practical step’ because of the ‘costly exercise’ instigated by the Applicant’s application. The submissions further referred to the fact no admissions were made by the Respondent as to the substantive dispute, and that no determination had been made about the dispute.
The Respondent referred to the language in the Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2009, and the decision of Driver J in the Federal Circuit Court in Rahman v Commonwealth of Australia as represented by the Australian Tax Office[25] that included the following:
“A finding of an unreasonable act or omission must be the exception rather than the rule. It follows that a reasonably high bar needs to be set for a party alleging an unreasonable act or omission.
…
The expression “an unreasonable act or omission” used in s.570(2)(b) of the Fair Work Act should bear its ordinary meaning. The test is not whether Mr Rahman acted in a manner that no reasonable person would have acted or that the pleadings were drafted in a manner that no reasonable person could have drafted pleadings.”
The Respondent also referred to the Full Court decision in Construction, Forestry Mining and Energy Union and Others v Clarke,[26] where the Full Court observed that the discretion to award costs under a predecessor section should not be exercised “with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best.”
The Respondent submitted that the Applicant had misconceived what is an ‘unreasonable act or omission’ for the purposes of s.375B. The Respondent submitted that, up until the hearing of 5 June 2017, the Respondent’s instructions had been to defend the Applicant’s application to revoke the grant of representation and there were a number of very strong arguments which supported those instructions. Those arguments were said to include the Fair Work Commission Full Bench decision in New South Wales Bar Association v McAuliffe,[27] where the Full Bench found it was not within the power of the Commission to choose who a lawyer will be.
The Respondent submitted that its position was defensible, the Applicant’s application was likely to fail, and the application to revoke was itself a costly and time consuming exercise and, by withdrawing, the Respondent saved the Applicant and the Commission time and further resources being expended on the application.
The Respondent submitted that the Commission should not consider s.611, as it was not raised in the originating application. In the alternative, the Respondent referred to the Full Bench decision in Church v Eastern Health[28] and submitted that the Respondent’s submissions in opposition to the revocation order were neither vexatious or without reasonable cause. It was noted that the Applicant had not submitted that the opposition was vexatious. The Respondent repeated its submission that the decision to discontinue its previously advanced position was made when its position was defensible, and the decision was purely commercial.
The Respondent referred to the Full Bench decision in NSW Trains v Mohammed Ayub[29] and relied on it in response to the Applicant’s argument that costs should be awarded because it should have been reasonably apparent to the Respondents that its opposition had no reasonable prospects of success. The Respondent submitted this proposed inference is simply not open and the Respondent’s opposition was tenable and reasonable.
In regard to s.376, the Respondent noted the Applicant’s submissions did not address the section. The Respondent repeated and relied on its submissions concerning s.375B in the context of s.376(2)(b). The Respondent submitted Dillon Bowers wrote to the Applicant to confirm it did not believe it had a conflict of interest and no fiduciary obligations were created, and in any case who should act for a respondent is not a matter the Commission could decide. The Respondent repeated and relied on its submissions concerning no reasonable prospects under s.611(1)(b) and on its submissions in the context of s.376(2)(a).
In reply submissions on 3 December 2018, the Applicant summarised its earlier stated position, submitted that the Applicant’s failure to tick the box for s.611 did not prevent it from making submissions to that effect or inhibit the Commission’s power to turn its mind to the section. The Applicant repeated its earlier submission that Dillon Bowers represented the claim group which included each member, and the Applicant interacted with Dillon Bowers as a member of the claim group. It also restated the view that the Respondent and Dillon Bowers could have made decisions to cease to respectively instruct and act earlier than they did. The Applicant also submitted the decision in McAuliffe was distinguishable from the facts in this case.
The Applicant accepted that it did not make submissions going to s.376, however, “the pith” of the Applicants matter was the same.
It is apparent that the nature of the application made under s.603 of the Act seeking revocation of a previous order made under s.596 was a very novel issue. The Applicants could not point me to any Commission authority on point.
I am satisfied that the approach taken by the Respondent up until the date of the hearing on 5 June was defensible, taking into account the reasons it provided for opposing the revocation order, as set out above, in its submissions in May 2017 and in the oral submissions made by Mr Barlow QC addressing the preliminary issues raised at the hearing on 5 June 2017. I am also satisfied that the decision was reasonably based on commercial grounds, without the Respondent having made any concessions on the merits of the matter. The Respondent had no way of knowing in the period leading up to and during the hearing of 5 June the approach the Commission might take to the matter given its novelty.
The Commissions approach could have fallen anywhere between deciding to determine the interlocutory issue on the day on the basis of submissions alone on the preliminary points raised by the Commission itself, to alternatively deciding to issue the orders for production, as well orders for attendance of additional witnesses as sought by Ms Roos, in addition to hearing evidence from the three witnesses who had already filed extensive material. This would all have required further hearing dates followed by a decision on the interlocutory issue resulting in delay to the final determination of the substantive case. I accept the Respondent’s submission that it did not cause costs to be incurred because of an unreasonable act or omission. Deciding to withdraw for commercial or practical reasons was a reasonable one given the circumstances.
I am also inclined to agree with the Respondent’s submission that, given the Applicant did not raise s.611 in the originating application, or raise any grounds related to s.611 in its application as it did for ss.375B and s.376, it is not strictly necessary for the s.611 issue to be determined. However, for completeness, I have considered the competing submissions in any event and have agreed with the Respondent that the Respondent’s submissions in opposition to the revocation order were neither vexatious, without reasonable cause or with no reasonable prospects, as the position advanced up to the point that Dillon Bowers ceased to act was defensible. I also reject the s.376 argument on that basis. For these reasons the applications for costs are dismissed.
COMMISSIONER
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[1] Transcript 3 March 2017 PN 40 to PN 51
[2] Transcript 20 April 2017 PN 12 to PN 16
[3] Transcript 20 April 2017 PN 37
[4] Transcript 20 April 2017 PN 47-49
[5] Transcript 20 April 2017 PN 77
[6] [2014] FWCFB 1663
[7] [2017] FWCFB 1165
[8] Transcript 5 June 2017 PN 58 – 60
[9] Transcript 5 June 2017 PN 129
[10] Transcript 5 June 2017 PN 158
[11] [2014] FWCFB 3869 para [8]
[12] [2015] FWC 5161 para [38]
[13] Transcript 5 June 2017 PN 201
[14] Transcript 5 June 2017 PN 243
[15] The role of the “applicant” in native title disputes (2013) 87 ALJ 761 page 771; Transcript 5 June 2017 PN 273
[16] Transcript 5 June 2017 PN 267
[17] [2016] FCAFC 75 (30 May 2016)
[18] [1984] HCA 156 CLR page 97
[19] 1998 Court of Appeal page 18
[20] Transcript 5 June 2017 PN 316
[21] [2013] FCAFC 143 para [92]
[22] Transcript 5 June 2017 PN 201 PN 370
[23] Transcript 5 June 2017 PN 201 PN 380
[24] [2018] FWC 2439
[25] [2013] FCCA 388 at [4] and [7]
[26] (2008) 170 FCR 574 at [29]
[27] [2014] FWCFB 1663 at [24]
[28] [2014] FWCFB 810 para [29] to [33]
[29] [2017] FWCFB 4801 para [18]
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