Mr David Brown v Maritime Safety Queensland

[2013] FWC 5882

[2013] FWC 5882

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Mr David Brown
v
Maritime Safety Queensland
(U2011/12088)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 30 AUGUST 2013

Application for costs - can a party waive legal professional privilege to meet a challenge on credit - can order be made on basis of finding of credit - affairs in hands of legal advisor.

[1] This application for costs was made in July 2012. The matter fell into abeyance for a period of some 12 months, before such time as it was allocated to me for determination. I am not the original decision maker, as a consequence. The original decision maker who had carriage of this application is unavailable to exercise the jurisdiction.

[2] The application for costs was made under s.658 of the Workplace Relations Act 1996 (“the WR Act”) (as preserved by way of s.1 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009) by the State of Queensland (acting on behalf of Maritime Safety Queensland) (hereafter referred to as “the State”). The State sought an order for the payment of costs incurred in respect of an application under s.643 of the WR Act in which a question arose, and was resolved, as to whether that application could be allowed in circumstances in which it had been filed outside the statutory period.

[3] By way of background, the Applicant was Mr David Brown, who had served as a marine pilot pursuant to the Maritime Safety Queensland Act 2002, and had been an employee of Maritime Safety Queensland until his employment came to an end in July 2009. For reasons that will be explained below, he did not make an application for a remedy in respect of his alleged dismissal until September 2011.

[4] A hearing was conducted, in May 2012, in relation to whether or not the application could be accepted given that it was made outside the statutory time period, then stipulated to be 21 days pursuant to s.632(14) of the WR Act.

[5] By decision [2012] FWA 5462 on 4 July 2012, Deputy President Swan (as she then was) determined that the Applicant could not satisfy the statutory test as it was, and the application was not allowed in a different period and thus was dismissed.

Statutory Provisions

[6] The statutory provisions relevant to the application for costs are set out below:

658 Commission may order payment of costs

(1) If the Commission is satisfied:

(a) that a person (first party):

(i) made an application under section 643; or

(ii) began proceedings relating to an application; and

(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;

the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.

[...]

the Commission may, on an application by the other party, make an order for costs against the representative.

(5) In making a decision under this section, the Commission may have regard to any certificate issued or advice given under section 650 and whether a party pursued a course of action contrary to any such certificate or advice.

(6) An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section 643 or proceeding relating to an application under section 643 (as the case may be).

(7) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of:

(a) an application to the Commission under section 643; and

(b) a proceeding in respect of an application under section 643.

(8) Without limiting, by implication, the generality of the items of expenditure for which the schedule may provide, those items may include:

(a) legal and professional costs and disbursements; and

(b) expenses arising from the representation of a party by a person or organisation other than on a legal professional basis; and

(c) expenses of witnesses.

(9) If a schedule of costs is prescribed for the purposes of subsection (7), then, in awarding costs under this section, the Commission:

(a) is not limited to the items of expenditure appearing in the schedule; but

(b) if an item does appear in the schedule – must not award costs in respect of that item at a rate or of an amount in excess of the rate or amount appearing in the schedule.

(10) For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section 643 in respect of which the Commission may make an order for costs:

(a) a proceeding for dismissal of an application under section 643 on the ground that the application is outside jurisdiction;

(b) conciliation proceedings under section 650;

(c) arbitration proceedings under section 652;

(d) an appeal to the Full Bench from an order of the Commission under section 654 or a costs order under section 658;

(e) a proceeding concerning an application for costs by one party in respect of another party’s application for costs.

[7] The case for costs put against the Applicant by the State is that it should have been reasonably apparent to the first party, being the Applicant, that he had no reasonable prospect of success in relation to the application or proceeding.

[8] This argument was put for a number of reasons. These reasons were set out in three documents submitted by the State. The first of these is the application for costs itself, which was dated 18 July 2012, and the second document was filed on 28 August 2012. Another document was filed on 23 August 2013, in response to updated materials received from the Applicant.

[9] I have conflated some of the grounds for the application for an order for costs where they overlap. The various grounds are dealt with separately below.

Issue 1: Duration of delay

[10] It was claimed at the outset that the Applicant’s application was filed more than three years out of time and a delay of such a period is extraordinary.

[11] This assertion does not in itself ground a claim for costs. An application for relief in respect of an alleged unfair dismissal which is made some three years since the date of the dismissal (or cessation of the employment relationship) is particularly uncommon and may well be open to being characterised as extraordinary. But whether an application that is extraordinary in and of itself must fail is another matter altogether, and is determined subject to the usual discretionary considerations.

Issue 2: Legal representation

[12] It was further claimed that the Applicant was legally represented by a solicitor and counsel and should have known that compelling evidence would be required to explain a delay of such a scale.

[13] The fact that the Applicant was legally represented by a solicitor and counsel does not ground a claim that the Applicant himself is responsible for the conduct of his case.

[14] It may be the case that the Applicant was acting on the basis of legal advice, or else the legal representatives may have been acting on the Applicant’s instructions. Ordinarily, legal professional privilege will shroud such circumstances. But it is nonetheless open for investigations to be conducted into whom is responsible for the decision-making. A party may well waive legal professional privilege in order to produce relevant facts.

[15] Indeed, in this case, it appeared that there was scope for the Applicant’s original legal advisor to give evidence in the course of the proceeding (when the Applicant’s claims about what he was advised and when he was advised were challenged). But this was refused by the presiding member on the objection of the State. In effect, it was held that any effort to produce further evidence in chief other than that which had formed the original materials was not conducive to the effective conduct of the trial. But who is to tell where such an examination, if it had been permitted, may have led.

[16] Even if this had not been the case, and if the matter was critical, it was open to the presiding member (albeit at the expense of the efficient conduct of the trial) to seek the view of the Applicant as to whether he sought to waive legal professional privilege in order to adduce evidence about claims that arose about his causal responsibilities in the chain of decision-making that led to his application. If the Applicant had refused to so waive professional legal privilege (in confined terms), it may always be open to the member presiding to draw whatever conclusions or inferences that might follow from this.

[17] I add finally that the Applicant’s solicitor at the hearings was not permitted to call the Applicant’s original solicitor to give evidence about the nature of all or some of the legal advice that had been given to the Applicant when the Applicant’s evidence had fallen into “confusion” as was alleged in the transcript. The entirety of the issue in this regard fell at the feet of the legal representative who ran the Applicant’s case. He admitted that he did not foresee that a particular question of the kind that arose might be asked or that the Applicant’s reasons might give cause for findings as to credit, particularly given that the legal advice was given over a particularly long period of time.

[18] This is not conduct in respect of which the Applicant should be held responsible for the purposes of this application.

[19] There is further discussion below as to the implications of legal representation for the application, under the heading “Issue 6: Claims un-evidenced”.

Issue 3: Vexatiousness

[20] It was also claimed that the Applicant had instituted the proceedings vexatiously because his predominant purpose in making the application had been to harass or embarrass the State of Queensland or else to gain a collateral advantage. The more precise argument here was that the Applicant only instituted his proceedings for relief in respect of his allegedly unfair dismissal to cause annoyance to the State having brought about the debt recovery action.

[21] I am not sure that this claim can be made out, at various levels. At one level, a claim against an applicant that his or her conduct in making an application is vexatious is not one that can be agitated (directly) through section 658 of the WR Act.

[22] The Applicant’s legal representative claimed in its submissions that the substance of the claim is also difficult to make out. The State commenced civil action, it said, against the Applicant at the beginning of June 2009. The Applicant took steps to defend himself against this action and to counter claim later in the year. Further steps in the proceedings followed over the course of 2010 and 2011. These included the State amending its original claim.

[23] The Applicant’s application in these proceedings was made on 12 July 2011, well after the civil action had commenced.

[24] None of this was evidence that was put to the Deputy President. It could have been adduced through re-examination but was not. That was a decision of the Applicant’s legal representative at the time of the hearing. It was not a decision on the part of the Applicant.

[25] The evidence was left with the Applicant denying he was motivated to seek reinstatement by the application under s.643 of the WR Act because of the recovery for monies action, and expressing a belief that if he was reinstated the Court action would cease. There was no exploration of why the Applicant held this view. He might have been mistaken, but he may have assumed that upon being reinstated the action for recovery of monies might be dealt with otherwise, or withdrawn. The transcript opens no window into the Applicant’s state of mind in this regard.

[26] It is difficult in all these circumstances to make out a case that the Applicant was motivated vexatiously or otherwise in respect of the State (assuming such a claim serves as a proxy for the application having reasonable prospect of success).

[27] Indeed, reading the evidence in this matter, some of the confusion evident in the transcript may have arisen from that very point. I note in this regard that while the Deputy President pointed to the particular admissions in her decisions, she demurred from making any express findings as a result. I will return to some of this material below as it went to findings on credit.

[28] In all, this matter did not generate any evidence of sufficient detail or that was sufficiently free of ambiguity that might lead to an adverse view being formed of the Applicant’s underlying motivations. And as I have said above, the application for an order for costs under the section may not invite such an investigation in any event.

[29] I add one final point. It appears to be the argument of the Applicant that his mind only turned to the issue of relief in respect of his alleged dismissal once he had become engaged in the legal advisory process relating to the defence against the state’s action and his counterclaim.

[30] There is nothing inherently unreasonable or implausible about this claim, and may explain to some degree why the two matters (responding to the claim for the recovery of monies and the application made under s.643 of the WR Act) became entwined. (There is a further discussion about the timing of the Applicant’s discussions with his legal representative below.)

[31] Again, I see nothing in these claims as I have discussed them that give me cause to conclude that the Applicant should have been reasonably aware that his application under s.643 of the Act had no prospect of success.

Issue 4: Witness credibility

[32] It was also claimed that the Applicant’s evidence in support of his case was unconvincing, and that Deputy President Swan had found the Applicant to be “an unreliable witness”. This observation was intended no doubt to imply that the Applicant’s belief that the discretion to extend time could be exercised favourably had no reasonable prospect of success because the Applicant was inherently unconvincing as a witness.

[33] It was argued that the Applicant’s employment with the Respondent ceased in July 2008 (which appears to have been generally accepted in those terms). The Applicant had claimed that he had not pursued his application because he received advice from a person at the telephone help line for the Australia Industrial Relations Commission (as it was then called) alleging that because his dismissal had been backdated (to April 2008) he was “out of time” for the purposes of bringing an application under the WR Act.

[34] The Applicant had put it this way in his witness statement:

I used a telephone contact found on the website and spoke to someone which I believed would be at the registry. I explained that I had been dismissed from my employment with Maritime Safety Queensland as a pilot and that, but dismissal was backdated to 8 April 2008.

I was told that because of the back dating of the dismissal I was out of time to bring the application for reinstatement.

[35] As a consequence, the Applicant had explained that he took a no further interest in pursuing relief in respect of his employer until a subsequent event reignited his interests in this respect.

[36] The subsequent event occurred on 26 May 2009 was when the State of Queensland commenced action against the Applicant to recover what was said to be overpayment and other monies owing in respect of his previous employment. The Applicant sought to defend himself against this claim and made a counterclaim.

[37] This matter progressed until such time as 29 June 2011 when during a conference with his solicitor the Applicant states that he was advised that there was scope to him to obtain an extension of time to bring his application for relief under s.643 of the WR Act. That at least, was his claim in his witness statement. Under cross examination, the Applicant was in a confused state as to whether the advice was given to him at that time or at an earlier time, probably in August 2009.

[38] Upon a fair reading of the transcript, there is in my view, scope for confusion, as the Deputy President described it, to arise from the responses to the questions put to the Applicant. It appears that in August 2009 the Applicant was seeking advice in respect of a complaint to the Human Rights Commission in relation to workplace bullying. It appears further that the issue of the probability of reinstatement arose at that time. But the subsequent examination process does not reveal with any clarity whether the Applicant admitted to being advised of the process of making an application for reinstatement by way of s.643 of the WRA or not.

[39] It appears the Applicant may reasonably have responded to the questions as to whether or not he was given advice about how to make an application for reinstatement in very general terms. That is, he conceded that he was given “advice”, but his responses do not link that advice to the implied admission (that he had been given advice as to how to make an unfair dismissal application under the federal statute). The examination process did not force him to make that linkage explicit.

[40] It was in respect of this particular matter that the Deputy President made the finding that he had given contradictory evidence as to when he first raised the matter of reinstatement with his solicitor. The relevant extract from the transcript reads as follows:

In around August 2009, I suggest to you - I asked you whether the issue of your reinstatement came up: did you discuss that with your solicitor?---I did discuss it with my solicitor, yes.

So about August of 2009?---I can't- I don't know what date reinstatement came up.

You're talking - at least in August of 2009 you're discussing with your solicitor the circumstances in which you left the state's employment. Correct?---Yes.

And you're discussing with your solicitor grounding a complaint to the Human Rights Commission. Correct?---Yes.

Because of, you say, workplace bullying. Correct?---Yes.

Did you also discuss with your solicitor, at that time, bringing an application for reinstatement?---I certainly discussed with my solicitor that I would like to be reinstated, and that had always been my position, yes.

I'm not going to ask you the content of the advice, but in August of 2009 you no doubt received advice from your solicitor about reinstatement, and how you would go about making an application. Correct?---Again I don't know what date it was, but I did get advice from him, yes. 1

[41] Reasonable minds will always differ in respect of the interpretation that is given to evidence and its context. It might be argued that the content of the cross examination and particularly paragraph 121 of the transcript of the cross examination does not provide the necessary support for a finding at first instance in the following terms (at paragraph 38):

The Applicant had legal representation from the same solicitor since 2009 and says, during evidence, that he first raised the issue of reinstatement with this solicitor in 2009. In response to a question from the respondent as to whether the Applicant’s solicitor had advised him as to “how would you would go about making an application”, the Applicant agreed that he did get that advice.

[42] It appears to me, in any event, that the finding above is a finding of credit. Would the Applicant have reasonably foreseen that the Commission would make such a finding about his evidence about the particulars of his legal advice in 2009 etc? I very much doubt it.

[43] Equally, in order to provide corroboration of the Applicant’s testimony, the Applicant’s solicitor in these proceedings sought to introduce the Applicant’s solicitor at the time who was the apparent source of advice referred to above. Permission was not granted by the Deputy President for the solicitor to be called to give evidence. I have discussed this in passing above.

[44] In such circumstances, as a matter of discretion, I would not approve an application for costs. In the first instance, a finding of credit does not ground an application for costs in all circumstances. I have said as much above. And in the second instance, the request made by the Applicant’s legal advisor during the proceedings to provide corroborating evidence was declined. That is, despite the willingness on the part of the Applicant to waive professional legal privilege, by way of a procedural decision the scope to adduce evidence in this regard was curtailed. As I said earlier, who is to tell whether that evidence would have been confirmatory of the Applicant’s evidence. And in any event, the management of the Applicant’s case (and the decision not to lead evidence from the Applicant’s earlier legal advisor) was not a decision taken by the Applicant (but by his (then) current legal advisor).

Issue 5: QIRC “advice”

[45] It was also argued that the Applicant was given advice by the Queensland Industrial Relations Commission that his prospects of success in relation to an application to extend time “may be limited”. Consequently, the Applicant was well placed to appreciate that his application had no reasonable prospects of success as it would be considered to be significantly out of time.

[46] The Applicant on 12 July 2011 made application for reinstatement to the Queensland Industrial Relations Commission. Following that hearing he was issued a certificate on 16 August 2011 which stated that his application had been made to the incorrect jurisdiction and that he should have made his application to Fair Work Australia, being the Commonwealth jurisdiction.

[47] It is true to say that the Commissioner who issued the certificate under the Queensland legislation further stated that the application may have limited prospects of success. The statement is qualified as it only refers to “may”, and in any event might be taken to be referring to the substantive case and not the extension of time proceeding. And I am somewhat uncertain as to whether the advice that was given was on the basis of the knowledge of the operation of the Queensland legislative framework or that of the Commonwealth legislation.

[48] I see nothing in the advice per se included in the certificate of 16 August 2011 issued by the Queensland Industrial Relations Commission that supports the making of an order for costs.

[49] The Deputy President’s decision sets out the evidence in this regard. Her primary concern was not the advice of the Commissioner as such, but the subsequent delay in lodging the application after this advice was given. I will return to this below.

Issue 6: Claims un-evidenced

[50] The State generally claimed that it should have been reasonably apparent to the Applicant that he had no reasonable prospects of success as he did not provide any credible evidence explaining the delay in the making of his application, provided no identifiable circumstances of note to support his claim and was found to have given contradictory evidence and been an unreliable witness.

[51] I have dealt with some of these claims earlier. But I do note that some of the Applicant’s claims were not subject of specific adjudication by the Deputy President at first instance. One example of this is that the Applicant claimed that he was given particular advice by the telephone helpline service. I have referred to this matter above. Though the State found this to be a “ludicrous” claim the matter itself was subject to no finding in the Deputy President’s decision. Indeed, such claims by applicants are particularly difficult to determine, other than on grounds of an assessment of the witness’ genuineness and overall credibility.

[52] I am, as a consequence, disinclined to make a finding adverse to the Applicant in respect of his claims when those claims have not been subject to any particular finding of fact (which was an improbable outcome as such a fact could not be established).

[53] There is one more matter of substance, and that concerns the delay that was incurred between 16 August 2011 (when the Commissioner of the Queensland Industrial Relations Commission advised the Applicant of the 21 day rule that applied under the WR Act) and the date under which the application under s.643 of the WR Act was made, which was 20 September 2011. Even assuming the 21 day period commenced on 16 August 2011, the Applicant did not lodge his application in Fair Work Australia (as it then was) until some 35 days later.

[54] There was no evidence from the Applicant for this delay. Nor did the Applicant’s legal advisor deal with the matter (even when it was raised in the closing submissions in reply). This discrete matter was wholly ignored amongst the wider arguments concerning the delay. The Applicant failed to discharge any onus in respect of providing a modicum of explanation for this delay.

[55] But I cannot find against the Applicant in this respect. His affairs were in the hands of his legal advisor at all times (and he had been advised legally over a very lengthy period of time). The errors in judgment and decision must be those of the legal representative. That is, having paid for professional legal advice, having received what seems to be defective legal advice, and having had his application for relief fail, I am not inclined to now (again) penalise the Applicant by way of an application for costs. The errors that have led to the application being out of time - which are unexplained and unaddressed - must, on a reasonable inference, be legal representative errors.

[56] In any event, given the disposition on the part of the Applicant to yield legal professional privilege, it might have been possible to explore the Applicant’s own culpability in this delay at the hearing. But the opportunity was no taken up.

Conclusion

[57] By way of selective summary, the Applicant was legally advised throughout. He had shown a disposition to waive (to some measure undefined) legal professional privilege in order to expose his own culpability in relation to decision making in respect of the application which was lodged beyond the statutory timeframe when it came under challenge in cross examination. In such circumstances I am not satisfied that the Applicant can be taken to have reasonably appreciated that his application had no prospect of success. His affairs, ultimately, were in the hands of his legal advisors and the matter must end there (unless evidence to the contrary had been adduced).

[58] I would, in any event, as a matter of discretion, be disinclined to award costs in a situation in which the Applicant had placed his legal affairs for a sustained period of time with his legal advisors. In such circumstances, the focus of the complaint should be elsewhere than upon the Applicant.

[59] Further, the Applicant claimed that he failed to assert his rights because of advice he was given by the telephone helpline service. No finding - of any direct nature - was made in relation to this matter in the Deputy President’s decision. The examination process did not explore the claim to any measure.

[60] Other findings about the Applicant’s credit as a witness do not ground an application for costs.

[61] And finally, while certain advice was given to the Applicant by a Commissioner of the Queensland Industrial Relations Commission, that advice, to the extent that it is relied upon by the State, is not enough to substantiate the application, for the reasons I have given.

[62] Other than that, the application by the State was in generalised terms, and I have dealt with those to the extent I consider reasonable.

[63] For the reasons I have given above I am not satisfied that the grounds are made out for an application for costs to be made against the Applicant, and in any event, I would not as a matter of discretion uphold the application for costs.

SENIOR DEPUTY PRESIDENT

Final written submissions:

Applicant - 16 August 2013

Respondent - 22 August 2013

 1   Transcript of proceedings dated 21 May 2012, at PNS115 - 121.

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