Mr Samuel Singh v Australian Taxation Office

[2015] FWC 8162

[2015] FWC 8162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Samuel Singh
v
Australian Taxation Office
(U2011/1489)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 NOVEMBER 2015

Costs application; Dismissed.

[1] On 10 March 2015 I issued a decision in which I found Mr Samuel Singh had been unfairly dismissed but I declined to make any orders in relation to his application for a remedy. 1 Mr Singh’s appeal2 against that decision was dismissed on 15 September 2015.

[2] Mr Singh applied for an order for costs in March 2015 and that application was adjourned by consent pending the outcome of the appeal.

[3] On 16 September 2015 I caused an email to be sent to Mr Singh seeking his advice if he wished to file any further material in support of his application. I also sought advice of the parties if they consented to the costs application being determined on the papers. On 16 September 2015 Mr Singh replied seeking more time to respond and he was subsequently directed to file material in support of his application by 7 October 2015.

[4] On 7 October 2015 Mr Singh replied however the submissions filed by Mr Singh did not address the application for costs. I note in Mr Singh’s submissions that his earlier submissions were not taken seriously and his view that the Full Bench merely rubberstamped the earlier decision. I further note his claim that the outcome of his application was determined by his race. However I am only able to determine the costs application on the evidence and submissions before the Commission and Mr Singh did not provide any further submissions or evidence in support of his application for costs.

[5] Accordingly I will determine this matter on the material currently before me.

Submissions of Mr Singh

[6] Mr Singh made an application for costs under ss.400A, 401 and 611of the Fair Work Act 2009.

[7] In his application Mr Singh submitted that given the decision of the AAT in 2011 and 2012 it should have been reasonably clear to the ATO and its lawyers that the termination of his employment was harsh unjust and unreasonable. Mr Singh submitted that given his ill health it was necessary for him to engage lawyers.

Submissions in reply by the ATO

[8] The ATO submitted that an order could not be made under s.400A because Mr Singh’s application was lodged prior to that section of the Act being enacted.

[9] The ATO submitted that that it did not respond to Mr Singh’s application vexatiously, without reasonable cause. It submitted that the decision demonstrates that the ATO’s arguments against unfairness were arguable. Further, it submitted that the ATO successfully resisted reinstatement which was pressed by Mr Singh and it also successfully resisted an order for compensation. It submitted that it cannot be said that the ATO’s response to the application had no reasonable prospects of success.

The Legislative Framework

[10] The Commission has the discretion to award costs against a party if certain preconditions are met.

Section 400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(2) This section does not limit the FWC’s power to order costs under section 611.

[11] Schedule 11 of the Fair Work Amendment Act 2012 which amended the Fair Work Act 2009 to include s.400A provides that s.400A only applies to dismissals that took effect after the commencement to the Act. As Mr Singh’s employment was terminated in 2011 the Commission does not have the jurisdiction to make an order under s.400A.

Section 401 Costs orders against lawyers and paid agents

[12] Section 401 of the Act as it existed prior to the amendments made by the Fair Work Amendment Act 2012 provides as follows:

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and

(ii) it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.

(2) FWA may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit FWA's power to order costs under section 611.

[13] For the same reasons as set out above the amendments made by the 2012 Act do not apply to Mr Singh’s dismissal. In his costs application Mr Singh sought orders against the ATO and did not make an application directed to the ATO’s legal representative. If Mr Singh had wished to make such an application, he should have done so within 14 days of the decision. In any event Mr Singh made no submissions and brought no evidence to support a claim for costs under s.401 against the ATO’s lawyers.

Section 611 Costs

[14] Section 611 of the Fair Work Act 2009 (the Act) provides as follows:

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC 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.

Did the ATO respond to the application vexatiously?

[15] North J said "a proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party or to gain collateral damage." 3

[16] I do not accept that the ATO responded to the application vexatiously. There is no evidence to support such a finding.

Did the ATO respond to application without reasonable cause?

[17] Was the ATO response bound to fail? The test is an objective one. I accept the submission that the ATO’s response was not made without reasonable cause. I accept that submission because in responding to the application the ATO was resisting an application for an order for reinstatement and compensation as well as a finding that the dismissal was unfair. It is difficult to see how, given the ATO was successful in resisting an order for a remedy, its response to the application was made without reasonable cause.

Should it have been reasonably apparent to the ATO that its response had no reasonable prospects of success?

[18] In A Baker v Salva Resources Pty Ltd 4a Full Bench summarised the approach to be taken in relation to section 611(2)(b) of the Act as follows:

"[10] The concepts within s.611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:

• should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test [Wodonga Rural City Council v Lewis, PR956243, at para 6]; and



• a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless [Deane v Paper Australia Pty Ltd,PR932454, at paras 7 and 8] or so lacking in merit or substance as to be not reasonably arguable. [A Smith v Barwon Regional Water Authority, [2009] AIRCFB 769 at para 48]."

[19] For the reasons outlined above I am unable to conclude that it should have been reasonably apparent to the ATO that its response had no reasonable prospects of success.

[20] Mr Singh’s application for costs is therefore dismissed.

DEPUTY PRESIDENT

 1   [2015] FWC 1579

 2   [2015] FWCFB 5258

 3   Nilsen v Loyal Orange Trust (1997) 76 IR 180 at 181.

 4   [2011] FWAFB 4014

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