Mr Ron Lever v Australian Nuclear Science and Technology Organisation

[2011] FWA 5165

[2011] FWA 5165

FAIR WORK AUSTRALIA

DECISION

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

Mr Ron Lever
v
Australian Nuclear Science and Technology Organisation
(U2007/376)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 9 AUGUST 2011

Costs application.

[1] I delivered a decision on 17 September 2009 1 in which, amongst other things, I refused an application pursuant to s394 of the Workplace Relations Act (the Act) lodged by Mr Lever. My decision was unsuccessfully appealed by Mr Lever.

[2] ANSTO applied for a costs order against Mr Lever. I heard this application on 30 April 2010 and 27 June 2011 in Sydney. Mr Lever represented himself. Mr Jauncey, a partner from Henry Davis York, solicitors of Sydney, represented Australian Nuclear Science and Technology Organisation (ANSTO). The extensive delay between the two hearing dates arose from adjournment applications made by Mr Lever. Both ANSTO 2 and Mr Lever3 also filed extensive written submissions.

[3] In my original decision I made findings concerning Mr Lever’s anxiety and mental health. These findings were not considered on appeal. ANSTO does not accept that there was any evidentiary material to support my findings in this regard.

[4] Despite the merit arguments so ably argued by Mr Jauncey, I have a discretion to exercise in relation to applications of this kind, and I have decided that I will not make a costs order against Mr Lever.

[5] In making my original decision, and in considering this application, I have had regard to the whole of Mr Lever’s medical history in so far as it was available to me, including the medical certificates provided for the purposes of Mr Lever’s workers’ compensation claims, the medical evidence provided to Comcare, the medical evidence provided to the Department of Social Security, the medical evidence before the Administrative Appeals Tribunal and the medical evidence before me.

[6] I have had the benefit of observing Mr Lever during the lengthy hearings before me in all four matters which were the subject of my decision. Three of these applications pre dated the application of Mr Lever pursuant to s394.

[7] I have drawn my conclusions regarding Mr Lever’s mental health from the medical history and evidence as well as my own observations of his conduct. The conduct of Mr Lever in hearings and his history of conflict in the workplace caused me to conclude that Mr Lever’s judgement about matters concerning the conduct of his application were affected by his mental health.

[8] I am also persuaded that the content of the certificate issued by Vice President Lawler dated 4 February 2008 contributed to Mr Lever’s commitment to proceed with his application.

[9] From my observations of Mr Lever before and during his s394 application I concluded that he had an obsessive personality and was in the grip of delusions which affected his judgement and caused him stress and anxiety, which in turn exacerbated those delusions and further affected his health.

[10] I will not exercise my discretion to order costs against Mr Lever because of my findings in relation to his mental health. A costs order would be financially ruinous for Mr Lever and consequently for his family, who have no doubt already suffered the consequences of his misguided adherence to his own path.

[11] The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   PR988619

 2   Application for costs filed 30 September 2009. Submission dated 22 June 2011.

 3   Mr Lever’s undated submissions.

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