Mr Joseph Salama v Transport for NSW T/A Sydney Trains

[2018] FWC 7465

[2018] FWC 7465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 789FC - Application for an order to stop bullying

Mr Joseph Salama
v
Transport for NSW T/A Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting
(AB2017/280)

DEPUTY PRESIDENT SAMS SYDNEY, 6 DECEMBER 2018

Application for costs in stop bullying application – application granted – assessment of costs disputed – orders made.

[1] On 9 October 2018, I published a decision on a costs application made by Sydney Trains against the applicant in a stop bullying application, Mr Joseph Salama; see: Salama v Transport for NSW t/a Sydney Trains and Others [2018] FWC 5756. In that decision I concluded as follows:

[42] However, as I am satisfied that it should have been reasonably apparent to Mr Salama that his s 789FC application had no reasonable prospects of success, at the least by the time of the respondents’ amended dismissal application of 19 December 2017, I am prepared to make an order for costs on a ‘party to party’ basis against Mr Salama for the period after that date.

[43] In that respect, I direct the respondents, to file within 14 days, a Schedule of Costs according to Schedule 3.1 of the Fair Work Regulations. Formal orders will follow as a consequence

[2] In accordance with my directions, Sydney Trains filed a schedule of costs and Mr Salama’s new lawyers were invited to comment. They disputed the amounts assessed according to the Schedule of Costs and the claimed period of time costs were incurred, totallying $15,606. On 23 October 2018, Sydney Trains sought to vary or revoke my decision on the basis that the Regulation’s Schedule of Costs did not expressly refer to costs applications arising from Stop Bullying applications. Sydney Trains put that the ordinary ‘party to party’ cost rules should apply which produced an amount of costs of $20,156.50.

[3] In the result, on 5 November 2018, I had cause to send the following email to the parties:

The Deputy President has considered the submissions of Sydney Trains in support of its request that his Honour vary his costs order decision in Salama v Sydney Trains [2018] FWC 5756. His Honour has also taken into account the respondent’s submissions from Mr Salama’s new legal representatives, Maxwell Berghouse & Ives Solicitors.

His Honour notes:

(a) Sydney Trains’ acknowledgement of its view that its earlier submissions were in error in respect to not raising the issue as to whether Schedule 3.1 of the Act’s Regulations applies in stop bullying applications.
(b) Despite Vice President Hatcher’s reservations as to whether Schedule 3.1 was applicable in stop bullying applications, his Honour nevertheless applied the Regulations in Application by Hill [2014] FWC 5588.
(c) Ultimately, once the gateway tests in s 611(2) of the Act have been satisfied, the Commission retains a broad discretion as to the extent of any costs order is considers appropriate, including not to make any order at all .

His Honour considers that his decision in Salama v Sydney Trains [2018] FWC 5756 is final and therefore he is functus officio in respect to the matter. This is not a case of simply varying, or revoking the decision in accordance with s 603 of the Act. Sydney Trains’ request would fundamentally vary the decision where there is no power for his Honour to do so. That said, his Honour notes the only avenue seemingly available to Sydney Trains in these circumstances, would be to appeal his Honour’s decision, assuming a Full Bench granted leave for an appeal outside of the 21 day time limit for filing an appeal (sub rule 56(2) of the Fair Work Commission Rules).

That being so, his Honour proposes to require Sydney Trains to file and serve a Schedule of Costs in accordance with Schedule 3.1 of the Regulations and para [42] of his decision within 7 days of today, consequent on which his Honour will make the requisite order.

[4] Sydney Trains provided a revised costs schedule and again comment was sought from Mr Salama’s lawyers. Their assessment was $8,327.00, which was sought to be paid in $500 monthly instalments.

[5] Lawyers for Sydney Trains responded on 5 December 2018 with a revised total schedule of costs of $20,153. The payment by instalments proposal was rejected, as there was no evidence of Mr Salama’s incapacity to pay. Payment was sought within 28 days or at least three months.

[6] The Commission has considered the written submissions of the parties, and in the exercise of my general discretion to award costs, I make an order for costs requiring Mr Salama to pay Sydney Trains the amount of $20,153 within 90 days of today. An order that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

P Ives, Solicitor for the applicant.

A Sharp, Solicitor for the respondents.

Final written submissions:

For the applicant, 21 November 2018.

For the respondent, 5 December 2018.

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