Mr Richard James Dobie v Goondi Hill Hotel
[2011] FWA 6939
•14 OCTOBER 2011
[2011] FWA 6939 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Richard James Dobie
v
Goondi Hill Hotel
(U2010/11983)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 14 OCTOBER 2011 |
Summary: costs application - whether application vexatious - whether no reasonable prospects of success - discretion.
[1] This is an application for costs made by Simmo Pty Ltd trading as the Goondi Hill Hotel (“the Respondent”), represented by the Queensland Hotels Association against Mr Richard Dobie (“the Applicant”), who made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 27 August 2010 (“the original application”).
[2] By written decision on 25 July 2011, I dismissed the original application.
[3] This application now before me is made under both s.611(2)(a) (at least in part) and s.611(2)(b) of the Act, and seeks that costs, in whole or in part, be ordered to be paid by the Applicant to the Respondent in relation to the original application.
[4] Section 611 of the Act reads as follows:
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
[5] Section 611(2)(a) of the Act requires “FWA [to be] satisfied that the [Applicant] made the application [...] vexatiously or without reasonable cause.” The Respondent only presses that the Applicant made the application vexatiously for purposes of this subsection. I will deal with this aspect of the application for costs first of all.
[6] The Respondent relied on a number of issues with the Applicant's case to demonstrate the Applicant’s vexatious conduct. The first was that the Applicant sought to punish the Respondent for attempting to counsel him about a conduct matter. This claim does not make out a case for vexatiousness. There is no factual basis amongst the evidence from which I could draw such an inference.
[7] Secondly, the Respondent argued that the application was for a collateral purpose (distinguishable from the above). That collateral purpose was that the Applicant was pursuing the “principle” or “respect” rather than a particular remedy provided for under the Act, such as “money”.
[8] I don’t consider that an Applicant whose motivation is demonstrating that his conduct was not as alleged (which bears upon an issue of “principle” or “respect”), can be said to have made the application vexatiously, for punitive purposes of one kind or another against the Respondent. There is nothing in the evidence that allows me to look through these asserted motivations and claim they were not as they were said to be. I add that the Applicant’s weak case (which I discuss below) in hand with his absence of interest in a remedy does not cause me to conclude any differently.
[9] Finally, the Respondent contends that the Applicant failed to present his five witnesses that he claimed at the conference with the FWA Conciliator would appear in the later proceedings. It is also contended that he did not indicate that he would be the sole witness until the time of the hearing itself.
[10] The Respondent claims that this was an abuse of process, and gives further evidence upon which an inference could be found that the Applicant was only acting vexatiously.
[11] This maybe so where it is demonstrated, by one means or another, that the witnesses never existed and there was a wider basis indicating that the Applicant was acting in a vexatious manner. But the fact is that I do not know why the Applicant chose to lead his own evidence alone. The witnesses may never have existed, perhaps they were unavailable, reluctant, or the Applicant did not have the time to prepare the various statements. Simply, this is not a matter about which I have any evidence at all, and I am reluctant to draw an adverse inference as a result.
[12] As stated above, the Respondent also sought costs on the basis that it should have been reasonably apparent to the Applicant that the original application had no reasonable prospect of success.
[13] The decision of the High Court in Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010) cautioned against reconstituting statutory phrasing such as “no reasonable prospect of success”:
58. “How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success”. [...] 1
[14] Did the original application have no reasonable prospect of success?
[15] The Applicant in this matter came to the application in the belief that his conduct was within acceptable boundaries and was focused upon the performance of the staff with whom he worked. The Applicant was not in receipt of the evidence of Ms Nancy Horton as to the impact of his conduct upon her until such time as the evidence was given during the proceedings.
[16] The Applicant also came to the application on the basis that certain words directed at him by Ms Gail Simpson of the Respondent, in a moment of some emotional intensity, were indicative of an act of dismissal at the initiative of the employer. Ms Simpson for her part conceded that the words she used at that time (“Good. Go.”) may not have reflected any intention of the Applicant to resign or abandon his employment at the particular time they was uttered.
[17] Therefore, the issue of jurisdiction, which was asserted by the Respondent in its Form F3 in response to the application, was not a self-evident matter, but had to be determined on the basis of a re-construction of the conduct of relevant parties.
[18] The Applicant’s case was a weak case. It was not supported and early claims that multiple witnesses would be led to corroborate his claims came to nothing. My decision bears all this out. But it is not to be assumed because of this that the Applicant had no reasonable prospect of success on the facts and wider evidence known to him at the time the application was made, though that might be a near thing.
[19] For these reasons, I dismiss the application that an order for costs be made against the Applicant.
[20] I add further that as a matter of discretion I would not have made the order as sought, in any event.
[21] I am of this view because the Applicant’s claims were barred by way of a jurisdictional query (which I have mentioned above) raised by the Respondent. The evidence led in the determination of this jurisdictional query largely overlapped with that of the substantive claim.
[22] Therefore, much of the evidentiary effort made over the course of the proceedings was also relevant to the jurisdictional point raised as to whether the Applicant was dismissed at the initiative of the employer. The resolution of this jurisdictional point in the context of Ms Gail Simpson’s evidence was not a straight forward affair.
[23] As a matter of discretion, I would not have made an order for costs for this further reason.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C. Lentini for the Respondent.
Hearing details:
2011.
Brisbane.
6 October.
1 Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010) [58] - [60].
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