Metecno Pty Ltd T/A Bondor v Cameron
[2014] FWCFB 2128
•10 APRIL 2014
[2014] FWCFB 2128 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
I Cameron
(C2013/7529)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 10 APRIL 2014 |
Appeal against decision [[2013] FWC 8902] of Commissioner Deegan at Canberra on 13 November 2013 in matter number U2013/7743—Costs Application—Costs application dismissed.
[1] On 21 March 2013, Mr I Cameron applied under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Metecno Pty Ltd T/A Bondor (Bondor). 1 On 13 November 2013, Commissioner Deegan found that the manner in which the termination occurred was harsh; Mr Cameron had been unfairly dismissed2 and made an order for compensation in lieu of reinstatement.3 On 4 December 2013, Bondor filed an appeal application, pursuant to s.604 of the Act against the decision and order of Commissioner Deegan.4
[2] On 19 February 2014, this Full Bench refused permission to appeal and dismissed the appeal.5
[3] On 25 February 2014, Mr Cameron made an application for an order for costs against Bondor in respect of the appeal.
[4] The costs application is determined in this decision. The Full Bench dismisses the costs application.
Costs provisions within the Act
[5] Section 400A of the Act empowers the Fair Work Commission (the Commission) to award costs against a party:
“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.”
[6] Section 611 of the Act provides the Commission with the power to award costs in certain circumstances:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.”
The costs application in this matter
[7] Mr Cameron’s costs application was brought entirely on the basis of s.611(2)(b) of the Act. 6 Mr Cameron argued that the Full Bench should be satisfied that it should have been reasonably apparent to Bondor that its appeal had no reasonable prospect of success.
[8] The application was advanced on the following basis:
• Section 400(2) of the Act requires the identification of a significant error of fact in order for an appeal to succeed;
• The error must be of sufficient magnitude to warrant intervention by a Full Bench;
• In the present case, the Full Bench was not persuaded that any “error at all” had occurred, “let alone significant error”; 7
• There was no reasonable prospect of success as there was “no error at all”;
• “Reasonably apparent” is an objective test;
• Bondor made no critical appraisal of the alleged errors and it was obvious to the Full Bench that not only was there no significant error but “no error at all”; and
• In the appeal Bondor misconceived the Full Bench decision in Parmalat Food Products Pty Ltd v Wililo. 8
[9] It was submitted that Mr Cameron had been unnecessarily subjected to considerable extra expense in responding to an unmeritorious appeal which fell at the first hurdle - “no error at all”.
[10] Mr Cameron relied on a number of decisions of the Commission 9 and the judgement of Wilcox J in Kanan v Australian Postal and Telecommunications Union (Kanan)10in respect of the statutory term “without reasonable cause”.
[11] Bondor submitted that there was no basis for the making of an order for costs under s.611(2)(b) of the Act. Bondor submitted that the prima facie position, under s.611(1) of the Act is that a person must bear their own costs in a matter before the Commission and departure from that position requires the establishment of the circumstances in s.611(2) or s.400A of the Act. Bondor submitted that no such basis for an order for costs had been established.
[12] Bondor submitted that the costs application rests on nothing beyond the proposition that Bondor had failed to establish error in the decision of Commissioner Deegan. It submitted that the making of an order for costs under s.611(2)(b) of the Act needs to go beyond the failure of the appeal. It relied on decisions in Roy Morgan Research Ltd v Baker 11 and Goffet v Recruitment National Pty Ltd.12 Bondor submitted that an order for costs would arise only in circumstances in which it could objectively be demonstrated that there was no prospect of success when the appeal was instituted.
Consideration
[13] The requirement, for enlivening the discretion to award costs under s.611(2)(b) of the Act extends beyond a finding, in an appeal, that no error is evident in the primary decision. The making of an order for costs under s.611(2)(b) of the Act requires satisfaction that, viewed objectively, 13 it should have been reasonably apparent to Bondor that its appeal had no reasonable prospect of success.
[14] In Hatchett v Bowater Tutt Industries Pty Limited (No 2), 14 when considering s.347 of the Industrial Relations Act 1988 (Cth), Von Doussa J stated that the test imposed by the expression “vexatiously or without reasonable cause” is similar to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel),15 Barwick CJ observed that the test in relation to the summary power to dismiss actions had been expressed in various ways, including “‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; [and] ‘discloses a case which the Court is satisfied cannot succeed’”.
[15] The language in General Steel adopted by Van Doussa J is reflected in Kanan’s consideration of the statutory term “without reasonable cause”: “on the applicant’s own version of the facts, it is clear that the proceeding must fail”, 16 in Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group: “hopeless or bound to fail”17 and in Legaz v Northern Beaches Community Services Pty Ltd: “manifestly untenable or groundless or so lacking in merit or substance as to not be reasonably arguable”.18
[16] In Baker v Salva Resources Pty Ltd, 19 a Full Bench summarised the approach to be taken in relation to s.611(2)(b) of the Act as follows:
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
• ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test [Wodonga Rural City Council v Lewis, PR956243, at para 6]; and
• a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless [Deane v Paper Australia Pty Ltd, PR932454, at paras 7 and 8] or so lacking in merit or substance as to be not reasonably arguable. [A Smith v Barwon Regional Water Authority, [2009] AIRCFB 769 at para 48].”
[17] Reflecting that approach, a conclusion that an application had “no reasonable prospect of success” should only be reached with extreme caution and where the application is “manifestly untenable or groundless”. 20
[18] Mr Cameron’s case for an order for costs rests on the proposition that it was unmeritorious because the Full Bench found no error, let alone a significant error in the decision of Commissioner Deegan. Mr Cameron’s submissions did not seek to establish that the appeal was manifestly untenable or groundless.
[19] Our finding in the appeal that Bondor had not established error in the decision of Commissioner Deegan is not sufficient to establish that the appeal was manifestly untenable or groundless.
[20] Upon considering Bondor’s appeal grounds, and our decision in relation to them, we are not satisfied that the appeal was manifestly untenable or groundless. In the appeal, we found 21 that Commissioner Deegan was entitled, within her discretion, to weigh up the competing considerations in s.387 of the Act, and her findings in relation to them, as she did. In circumstances where the s.387 considerations included a clear finding by the Commissioner that there was a valid reason for the termination and some arguable points as to the Commissioner’s findings on the evidence, we are not satisfied that, when viewed objectively, it should have been reasonably apparent to Bondor that its appeal had no reasonable prospect of success.
[21] Whilst we ultimately found against Bondor in relation to each of its appeal grounds, we are not satisfied that each of Bondor’s contentions in the appeal were manifestly untenable or groundlessor so devoid of merit, so as to support a finding that the appeal had no reasonable prospect of success.
[22] The Full Bench is not satisfied that it should have been reasonably apparent to Bondor that its appeal had no reasonable prospect of success.
[23] We dismiss the application for costs.
SENIOR DEPUTY PRESIDENT
Appearances:
D Miller of Australian Industry Group for the Appellant.
D Grey for the Respondent.
Hearing details:
2014.
Melbourne and Launceston (video hearing):
March 31.
1 U2013/7743.
2 [2013] FWC 8902.
3 PR544471.
4 C2013/7529.
5 [2014] FWCFB 1207 at para 39.
6 Application for costs, at Ground (vi).
7 [2014] FWCFB 1207 at paras 21 and 35.
8 [2011] FWAFB 1166.
9 Derham v Jenny Craig Weight Loss Centres Pty Ltd, [2012] FWA 9448; Clothier v Ngaanyatjarra Media, [2012] FWAFB 6323;Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group, [2011] FWA 2910 and Legaz v Northern Beaches Community Services Pty Ltd, [2011] FWA 5656.
10 (1992) 43 IR 257 at 264–265.
11 [2014] FWCFB 1175.
12 [2009] AIRCFB 626.
13 Baker v Salver Resources Pty Ltd,[2011] FWAFB 4014 at para10; citing Wodonga Rural City Council v Lewis, (2005) 142 IR 188 at 190–191.
14 (1991) 28 FCR 324 at para 8; (1991) 39 IR 31.
15 (1964) 112 CLR 125 at 129.
16 (1992) 43 IR 257 at 264–265.
17 [2011] FWA 2910 at para 29.
18 [2011] FWA 5656 at para 64.
19 [2011] FWAFB 4014.
20 Deane v Paper Australia Pty Ltd,PR932454 at para 7.
21 [2014] FWCFB 1207 at para 35.
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