Mr Diego Velasquez v Cabrini Health Limited
[2018] FWCFB 888
•13 FEBRUARY 2018
| [2018] FWCFB 888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
Mr Diego Velasquez
v
Cabrini Health Limited
(C2018/193)
| DEPUTY PRESIDENT SAMS DEPUTY PRESIDENT BINET COMMISSIONER HARPER-GREENWELL | SYDNEY, 13 FEBRUARY 2018 |
Appeal against decision [[2017] FWC 5965] of Deputy President Gostencnik at Melbourne on 21 December 2017 in matter number U2017/7702 – application for security of costs – merits of the appeal – financial position of the parties – what is just in all the circumstances – little prospects of success – exercise of discretion – security of costs order granted.
This decision concerns an application for security of costs filed by Cabrini Health Care Ltd (‘Cabrini’ or the ‘respondent’) on 29 January 2018, in respect to an application filed by Mr Diego Velasquez (the ‘appellant’) for permission to appeal and appeal of a Decision and Order of Deputy President Gostencnik published on 21 December 2017 in Velasquez v Cabrini Health Limited [2017] FWC 5965 and Print PR598982 (the ‘Decision’). The appeal was listed for hearing before the Full Bench in Melbourne on 6 February 2018. The appellant represented himself and Mr N Harrington of Counsel, with Ms L Drummond Solicitor, appeared for Cabrini. Permission was granted for Mr Harrington to appear, pursuant to s 596 of the Act, with the Full Bench having been satisfied the matter would proceed more efficiently if the respondent was represented by a lawyer. We note the appellant did not object to Mr Harrington’s appearance.
The reasons for the appellant’s dismissal may be shortly stated. The Deputy President found that the appellant’s termination of employment for reasons of redundancy was a genuine redundancy, pursuant to s 389 of the Act and dismissed his unfair dismissal application accordingly.
At the commencement of the hearing, Mr Harrington pressed Cabrini’s application for security of costs. The Full Bench decided to determine that matter first, after having considered the written and oral submissions of both parties to which we now refer.
Grounds for the order
Cabrini set out the grounds for its application for security of costs as follows:
1. The application for permission to appeal and the appeal itself is conspicuously unmeritorious. In that context the Respondent will likely successfully oppose the grant of permission to appeal. In those circumstances the Respondent will seek an order for its costs. There is no evidence the Appellant can satisfy such an order for costs.
2. The appeal is vexatious as it lacks merit. Neither the (draft) Notice of Appeal nor the Appellant's document, 'Appellant's Legal Submissions' dated 18 January 2018:
(a) disclose an identifiable appellable error of law; or
(b) prosecute any ground in support of permission to appeal; or
(c) identify any public interest ground such as to support the grant of permission to appeal.
3. Further, there is evidence, in the form of various letters written recently to various senior Respondent personnel, both locally and internationally, that the Appellant is treating this appeal process as little more than one battle in a larger war he is prepared to wage against the Respondent.
4. The Appellant is disgruntled by the first instance decision on jurisdiction. He asserts, if only implicitly, that it is wrong but does not point to any 'appellable' error. The documents already filed by the Appellant disclose he simply wishes to reagitate/reargue his first instance case with the addition of certain other irrelevant matters.
5. The Appellant was legally represented in the unfair dismissal application before DP Gostencnik. He was given every opportunity to run his case and engage with the jurisdictional objection.
6. DP Gostencnik delivered a thorough and detailed set of reasons, over 103 paragraphs, which upheld the Respondent's jurisdictional objection arising out of the genuine redundancy of the Appellant's position.
7. The Appellant has had his day in the Commission. He ran his case and lost for want of jurisdiction. There is no basis for the Commission to now provide him with a 'free hit' on appeal, especially where he faced no cost consequence upon his loss before DP Gostencnik.
8. The appeal is unnecessary. There is no error to correct. There is no point of principle to explore. The appeal will impose significant legal expenses upon the Respondent. If a proceeding appears hopeless and such as was bound to fail, the lack of apparent merit in a party's case will often be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent.
9. By reason that the appeal is wholly devoid of merit, the Respondent has a strong chance of success. Further, if the Commission were to ultimately determine the appeal lacked merit or was unreasonable and otherwise vexatious, the Respondent will make an application for costs of the appeal.
10. The Appellant admits he has not been working. There is every possibility the Appellant will not be able to satisfy any order for costs on the appeal the Respondent might obtain against him.
11. In the premises, the Commission ought make an order that the Appellant provide security within 7 days for the payment of the Respondent's costs should it obtain such an order at the conclusion of the appeal process.
In written submissions, Mr Harrington put that the Commission’s powers to order security of costs is to be found at s 404 of the Act and Rule 55 of the Fair Work Commission’s Rules. The statutory provision and Rule 55 are as follows:
404 Security for costs
The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.
55 Order for security for payment of unfair dismissal matter costs
(1) A respondent or applicant in a matter before the Commission arising under Part 3‑2 of the Act (unfair dismissal) may apply to the Commission for an order that a person provide security for the payment of costs in respect of the matter or part of the matter.
Note 1: The application must be in the approved form—see subrule 8(2).
Note 2: The Commission will not ordinarily make such an order before the conclusion of conciliation.
(2) The person to whom an order made under subrule (1) applies must pay the amount of security at the time, and in the manner and form, required by the order.
(3) If the Commission orders that security for the payment of costs be given in respect of a matter or part of a matter arising under Part 3‑2 of the Act, a respondent or applicant in the matter may apply to the Commission to:
(a) reduce or increase the amount of security to be provided; or
(b) vary the time at which, or manner or form in which, the security is to be provided.
(4) Without limiting any other power which the Commission may exercise, if the Commission directs a person to provide security for costs in relation to a matter or part of a matter arising under Part 3‑2 of the Act, the Commission may order that the matter be:
(a) adjourned until security is provided; or
(b) adjourned indefinitely.
The extent and scope of the Commission’s powers in security of costs applications, were discussed in Chen v Monash University [2015] FCA 130, Zornada v St John Ambulance Australia (WA) Inc (2013) 237 IR 48 and Harris v Home Theatre Group t/a Home Theatre Group [2011] FWA 2910 (‘Harris v Home Theatre’).
Mr Harrington submitted that as a matter of procedural logic the Commission ought to hear and determine an application for security of costs before any substantive permission to appeal and appeal is heard. Any listed application ought be adjourned until the security is provided. Otherwise the order would be futile and of no practical utility.
Mr Harrington relied on the grounds set out at para [4] above. He put that neither the appellant’s notice of appeal nor his filed submissions shed any light on the nature of the appeal or its merits. In referring to the relevant authorities governing applications of this kind, Mr Harrington submitted that three matters should guide the Commission in determining the application:
The merits of the application;
The financial position of the parties; and
What is just in all the circumstances.
As to merits, Mr Harrington put that there has been no errors identified by the appellant in the Deputy President’s Decision. He is simply disgruntled with the Decision and wishes to rerun his case on appeal to obtain a different result. He is merely using the appeal process as a platform in a campaign against Cabrini. Moreover, he has made plain his intention to continue to prosecute his campaign in a ‘war’ he has declared on the respondent. In recent times, he has sent letters and documents to the Superior General of the Order of Nuns which is associated with Cabrini Healthcare, Sister Barbara Staley MSC, in Italy and to the Bishop of the Diocese of Manzini in Swaziland seeking their support for his campaign. He has made comments such as ‘This is not the end of it’ and ‘I’m going to be taking this matter and other matters to government entities’. Mr Harrington acknowledged that the appellant is entitled to be deeply aggrieved by the Decision, but he is not entitled to use this appeal, without any proper basis, as a ‘spoke in the wheel’ of his ongoing campaign against Cabrini. Mr Harrington noted the appellant was legally represented below and he had an opportunity to fully advance and prosecute his case and he did so. Mr Harrington submits that this appeal is ‘hopeless’ and ‘conspicuously unmeritorious’.
As to the appellant’ financial position, and his claim of being unable to pay for legal representation or meet any order for security of costs, he has provided no evidence of any incapacity to meet the security of costs order.
Mr Harrington submitted that in all the circumstances, it is just that the order be made; see: Tait v Bindal People [2002] FCA 322 at [2] to [4].
Mr Harrington set out a schedule of costs totalling $25,010 and sought an order for security of costs in the sum of 70% of that amount within 14 days. In the event that an order for payment of security issues and no security is provided, Mr Harrington submits that the application for permission to appeal and appeal should be dismissed.
The appellant’s submissions
The appellant opposed the order for costs on the following five bases:
(a)The application is oppressive and an attempt to stultify his appeal;
(b)He is unrepresented in this matter and has had no legal training;
(c)The costs sought by the respondent are exorbitant;
(d)The respondent is a large and profitable health organisation, whilst he is an unemployed Social Worker unable to pay for legal representation; and
(e)The power imbalance between the respondent and the appellant militates against the Commission making the order.
As to his financial circumstances, the appellant informed the Full Bench that although he is a single man, he has had no income for seven months and has been unable to obtain alternative employment. He also informed the Full Bench that he has a mortgage and rent to pay, and a financially dependent niece, who is a single mother of two living in Colombia. The appellant claimed to have no savings and had applied for Centrelink payments three weeks earlier, but has had no answer. He acknowledged receiving around $54,000 when he was made redundant by Cabrini on 23 June 2017.
It is usual for a party facing an order for security of costs to tender evidence of their assets and liabilities. While the appellant did not tender any such evidence, Mr Harrington indicated that he did not necessarily dispute the appellant’s oral submissions as to the appellant’s financial status. Mr Harrington submitted that on the appellant’s oral submissions, there would appear to be little likelihood of the appellant meeting any costs order.
Mr Harrington accepted that the quantum of any security of costs order and on what terms was entirely a matter for the Full Bench to determine in the exercise of its discretion.
CONCLUSION
We delivered the following ex tempore decision shortly after the hearing.
The Full Bench is mindful that costs applications in the Commission are extraordinary and security of costs applications, even more so; see: Zornada v St John Ambulance (WA) Inc [2013] FWCFB 8255 at [35] (‘Zornado’). The principles to be considered by the Commission in matters of this kind are set out at [34] and [35] of Zornado as follows:
‘[7] Principles relevant to the making of orders for security of costs can be summarised as follows. There is no absolute rule to control the exercise of the discretion to order security for costs, and what should be done in each case depends on the circumstances of the case with the governing consideration being what is required by the justice of the matter. The making of an order for security for costs should not be oppressive in that it would stifle a reasonably arguable claim.
[8] The financial position of the party against whom the order is sought, will be relevant in a number of circumstances. There is no absolute rule that impecuniosity of a party will entitle its opponent to an order for security for costs. There is also a general rule that poverty should not be a bar to a person prosecuting a claim at first instance. On appeal, the question of security is to be determined differently on the basis that the appellant has had his or her day in court, and should not be given a “free hit”, particularly in circumstances where the costs of a proceeding below had not been paid by the appellant.
[9] In cases where the impecuniosity of the party against whom the order for security for costs is sought, it is relevant that the impecuniosity is itself a matter which the litigation may help to cure or arises from the conduct the party is complaining of. In such circumstances the party against whom the order is sought should not be shut out of litigation.
[10] The prospects of success and the strength of the case of the party resisting the order is relevant. In Merribee(Supra) Kirby J said:
“Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party’s case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security of costs. Furthermore, if a party asserts that its opponent’s proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation.”
[11] In relation to costs, it is relevant that the nature of a proceeding is such that, even if successful, an order for costs might not be made or might be limited. The inability of a party to meet the costs of an unsuccessful proceeding, or the risk that a cost order will not be satisfied is also relevant to the exercise of the discretion. Other related considerations are that a party is, or is likely to be absent from the jurisdiction when a decision is made and has no, or few assets within the jurisdiction.
[12] There may also be aspects of public interest which are relevant to the exercise of the discretion to make an order for security for costs, such as an application raising matters of general public importance, quite apart from the interests of the parties. Other matters that have been considered relevant are that a hearing of the proceedings is close at hand, or the party seeking the order has delayed its application for such an order. It may also be relevant that the parties, or some of them, are legally aided.
[35] We agree with the summary provided by her Honour.’ (citations omitted)
In balancing the interests of justice, we further recognise that different principles apply when security of costs applications are considered at the appellate level, as there will have been an earlier determination of the Commission in proceedings in which the appellant has already had an opportunity to ventilate all the issues said to be relevant to his/her unfair dismissal claim; see: Tait v Bindal People [2002] FCA 322 at [2]-[4]. The appellant has had an opportunity to put his case over a two day hearing before the Deputy President. There is no basis to conclude that he was denied procedural fairness in the proceedings below, in which, we note, the appellant was legally represented.
We have carefully considered the submissions of Mr Harrington and the appellant and the authorities referred to us by Mr Harrington.
We are satisfied from a review of the voluminous amount of material filed by the appellant, that his appeal has little prospects of success, particularly given he has not identified any error of fact or law (let alone a significant error of fact) in the Deputy President’s Decision. Prima facie, he merely strongly disagrees with the outcome.
The respondent has led evidence and submitted that the appellant’s claim is being pursued vexatiously. We consider there is merit in this submission. Moreover, there is uncontested evidence that the appellant has no intention to cease his campaign against the respondent and its decision to dismiss him, despite the appeal he has lodged. His recent communications demonstrate this observation; see: Harris v Home Theatre Group at [20]-[21].
We note the appellant’s submissions as to his financial circumstances. However, the courts have made it clear that security of costs is not about ‘locking out’ impecunious litigants; rather it is about ensuring that if a party brings an appeal and loses, an order for costs can be made for the right exercised by that party.
Mr Harrington properly accepted that orders for security of costs are discretionary and it is open to the Commission to order any amount, and on what terms, the Commission considers appropriate in all the circumstances.
Accordingly, we propose to make an order for security of costs in the amount of $10,000. Such an order is to be complied with within 21 days from the date of the hearing day (27 February 2018). A failure to comply with the order may result in permission to appeal being refused and the appeal dismissed.
An order to this effect is issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr D Velasquez for himself.
Mr N Harrington of Counsel, with Ms L Drummond, Solicitor (Holding Redlich) for the respondent.
Hearing details:
2018.
Melbourne:
February 6.
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