Ms Linda Rigby v BMS Retail Group Pty Ltd T/A Champions IGA
[2016] FWCFB 7769
•27 OCTOBER 2016
| [2016] FWCFB 7769 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
BMS Retail Group Pty Ltd T/A Champions IGA
(C2016/3964)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 OCTOBER 2016 |
Application for costs of appeal – application dismissed.
[1] Ms Rigby made an unfair dismissal application against her former employer, BMS Retail Group Pty Ltd (BMS). In a decision recorded on transcript on 10 May 2016, Deputy President Hamilton dismissed Ms Rigby’s unfair dismissal application. On 2 June 2016, Ms Rigby filed a Notice of Appeal against the decision and order of Deputy President Hamilton dismissing her unfair dismissal application. Ms Rigby’s appeal was instituted two days outside of the time prescribed by rule 56 of the Fair Work Commission Rules 2013.
[2] For the reasons set out in our decision dated 28 July 2016 (Appeal Decision 1), we refused Ms Rigby’s application to extend the period of time within which her appeal may be lodged.
[3] On 11 August 2016, BMS made an application against Ms Rigby for a costs order in relation to the appeal proceedings. The costs application is made pursuant to ss.400A and 611(2) of the Fair Work Act 2009 (Cth) (Act).
[4] BMS’ costs application has been made within the 14 day period prescribed by s.402 of the Act.
Principles applicable to application for costs
[5] Section 611(1) of the Act establishes a general rule that parties in proceedings before the Fair Work Commission (Commission) must bear their own costs. There are a number of provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Sections 611(2) and 400A of the Act are two such exceptions.
[6] Section 400A of the Act provides as follows:
“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.
(3) This section does not limit the FWC's power to order costs under section 611.”
[7] Section 400A of the Act applies to an appeal against a decision in relation to an unfair dismissal application. 2
[8] Section 400A(1) of the Act establishes two preconditions for the making of an order for costs:
(a) First, the Commission must be satisfied that the party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and
(b) Secondly, such act or omission caused the other party to the matter to incur costs.
[9] If these two preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.
[10] Section 611(2) of the Act provides as follows:
“(2) However, the FWC may order a person (the first person) to bear some or all of the 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.”
[11] The relevant principles concerning the interpretation and application of s.611(2)(a) were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing 3and may be summarised as follows:
- An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.
- An application is not made without reasonable cause simply because the application did not succeed.
- Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.
- If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.
- In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there was not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.
- An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, or manifestly groundless, or discloses a case where the tribunal is satisfied cannot succeed.
[12] In relation to s.611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd 4as follows (footnotes omitted):
- ‘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; 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 or so lacking in merit or substance as to be not reasonably arguable.”
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
Submissions
[13] BMS filed written submissions dated 11 August 2016 in support of its application for costs. In addition, BMS relies upon an affidavit made by its solicitor, Ms Zoe Brick, on 11 August 2016 in relation to its application for costs in connection with the appeal.
[14] On 18 September 2016, Ms Rigby informed this Full Bench that she relies on a letter she provided to Deputy President Hamilton in relation to BMS’ application for costs of the hearing at first instance, in support of her opposition to the cost order sought by BMS in relation to the appeal. We will treat that letter as Ms Rigby’s submissions in relation to the costs application now before us.
[15] Neither party made an application for a hearing in relation to BMS’ application for costs in connection with the appeal. As a result, BMS’ costs application in relation to the appeal has been determined on the basis of the written submissions filed by the parties and the affidavit of Ms Brick.
BMS’ submissions
[16] BMS’ submissions under ss.611(2)(a) and (b) of the Act may be summarised as follows:
(a) The appeal proceeding was instituted by Ms Rigby vexatiously and/or without reasonable cause and/or in circumstances in which it should have been reasonably apparent to Ms Rigby that she had no reasonable prospects of success;
(b) In particular, BMS submits that:
(i) Ms Rigby simply sought that the matter be reheard;
(ii) BMS was put to considerable expense to meet a case that was without substance;
(iii) Ms Rigby did not in her Notice of Appeal identify the public interest grounds upon which permission to appeal should be given. Ms Rigby was represented at the time of filing her Notice of Appeal and was receiving advice regarding her appeal;
(iv) Ms Rigby did not seek to mount any case or make any argument in respect of the public interest grounds in the appeal proceeding or allege any error of fact in the first instance decision by Deputy President Hamilton, even after being directed to do so pursuant to directions issued by this Full Bench on 14 June 2016;
(v) there was nothing in the materials filed by Ms Rigby in the course of her appeal which challenge the factual or legal basis upon which the decision at first instance by Deputy President Hamilton was made;
(vi) BMS’ solicitor put Ms Rigby on notice in correspondence to her of the deficiencies and weaknesses in her application for permission to appeal, including her application to extend time for the filing of the appeal. Notwithstanding those warnings, Ms Rigby continued with her appeal proceedings;
(vii) in relation to her application for an extension of time to file her Notice of Appeal, Ms Rigby did not produce medical evidence which satisfactorily explained her delay in filing her Notice of Appeal; and
(viii) Ms Rigby’s appeal was untenable and manifestly groundless.
[17] BMS’ submissions under ss.400A(1) of the Act may be summarised as follows:
(a) Ms Rigby caused BMS to incur costs because of unreasonable acts or omissions in connection with the conduct or continuation of the appeal proceeding. In support of this contention, BMS submits that the matters relied upon by it in support of its application for costs under section 611 of the Act constitute unreasonable acts or omissions;
(b) Ms Rigby’s filing of non—compliant appeal books was an unreasonable act or omission which caused BMS to incur costs in corresponding with the Commission and preparing and filing its own compliant appeal books;
(c) Ms Rigby’s failure to produce medical evidence at the hearing before this Full Bench on 12 July 2016 was an unreasonable act or omission which resulted in the hearing being adjourned and BMS incurring costs in appearing at a further hearing on 14 July 2016; and
(d) Ms Rigby’s failure to provide a prior notice to BMS and/or the Commission that she would not be in a position to produce medical evidence at the 12 July 2016 hearing was an unreasonable act or omission which caused BMS to incur costs.
Ms Rigby’s submissions
[18] Ms Rigby contends that she was told by her representative at first instance that she had “a very good solid case against BMS Group for unfair dismissal”. Ms Rigby believes that she was not represented as well as she should have been in the hearing at first instance. Ms Rigby also contends that she cannot afford to pay any of the costs sought by BMS.
Determination of costs application pursuant to s.611(2)
[19] There is no basis for us to find that Ms Rigby’s predominant motive or purpose in making and pursuing her appeal against BMS was to harass or embarrass BMS or to gain a collateral advantage. Based on the submissions made by Ms Rigby during the appeal proceedings, we are satisfied that she was genuinely aggrieved by the decision dismissing her unfair dismissal application and she has made and pursued her appeal in a genuine attempt to overturn the decision at first instance. Accordingly, we reject the contention under s.611(2)(a) of the Act that the appeal proceeding was instituted by Ms Rigby vexatiously.
[20] In support of its submission that Ms Rigby instituted the appeal proceeding without reasonable cause and/or in circumstances in which it should have been reasonably apparent to Ms Rigby that she had no reasonable prospects of success, BMS contends that Ms Rigby was represented at the time of filing her Notice of Appeal and was receiving advice regarding her appeal. To that end, BMS relies on the fact that Ms Rigby was represented by Mr Gary Pinchen of A Whole New Approach Pty Ltd (A Whole New Approach) in the proceedings at first instance before Deputy President Hamilton and A Whole New Approach did not file a Notice of Ceasing to Act until 3 June 2016, being the day after Ms Rigby’s Notice of Appeal was filed. BMS also relies on the transcript of a directions hearing before Deputy President Hamilton on 2 June 2016 in relation to BMS’ application for costs in connection with the hearing at first instance, including where Mr Pinchen informed Deputy President Hamilton that he had made Ms Rigby “aware of the difficulties” 5 associated with Ms Rigby’s appeal being commenced out of time.
[21] Save for being made aware of “difficulties” associated with her appeal being commenced two days out of time, we are satisfied that Ms Rigby was self-represented during her appeal proceedings, for the following reasons:
(a) Ms Rigby “exhausted” her savings by paying her representative at first instance; 6
(b) The following parts of the transcript of the directions hearing before Deputy President Hamilton on 2 June 2016 make plain Ms Rigby’s intention to represent herself in the appeal:
“Mr Pinchen: Yes, your Honour. Other than there’s an added issue that I’ve been instructed only this morning that Ms Rigby intends to appeal the decision. She will be self-represented in that regard and we ask upon that basis a stay order in reference to the resolution of the costs application, pending her self-represented appeal.
…
Deputy President: Has the appeal been lodged?
Mr Pinchen: On instructions to me before, your Honour, Ms Rigby has now obtained the forms from the registry at level 4.”
(c) Ms Rigby prepared the Notice of Appeal in her own hand. It was clearly not prepared by, or with the assistance of, a lawyer or paid agent; and
(d) Ms Rigby was self-represented at the hearing of her application for permission to appeal.
[22] In addition to the fact that Ms Rigby was not represented in the appeal proceeding, it is relevant to note that Ms Rigby suffered, and continues to suffer, from ongoing depression and anxiety symptoms. 7 These factors undoubtedly had an impact on Ms Rigby’s ability to formulate and articulate grounds of appeal and arguments as to why it was in the public interest for the Commission to grant her permission to appeal.
[23] Ms Rigby identified in her submissions in support of her application for an extension of time to lodge her appeal that her poor mental health was a reason why she had not lodged her appeal within 21 days of the Deputy President’s decision at first instance. As a lay person, she did not appreciate that she would need evidence to support those matters until correspondence was sent to her from the Commission on 11 July 2016, the day before the permission to appeal hearing. We adjourned the permission to appeal hearing to 14 July 2016, to enable Ms Rigby to communicate with her general practitioner and her psychologist and to arrange for them to give evidence. On 14 July 2016, Ms Rigby filed two reports. The first was from Dr Hans Surya and the second was from Ms Kirsty Lamers, a psychologist. The reports confirmed Ms Rigby’s ongoing depression and anxiety symptoms.
[24] Although we were not persuaded on the medical evidence that Ms Rigby’s symptoms of her condition were so severe during the relevant period as to satisfactorily explain the delay, 8 Ms Rigby did not have the medical reports from her general practitioner and her psychologist at the time she filed her Notice of Appeal. Accordingly, the deficiencies in those reports9 could not have been known to Ms Rigby at the time she lodged her Notice of Appeal; those facts were not apparent to Ms Rigby at the time the application was made.10
[25] On the basis of the facts apparent to Ms Rigby at the time she lodged her Notice of Appeal, we are not able to conclude that she had no substantial prospect of success. Her medical practitioners may have produced reports in which they provided a satisfactory explanation for the two day delay in lodging her Notice of Appeal. That would have enhanced her prospect of time being extended to lodge her Notice of Appeal.
[26] In addition, although we were not persuaded that Ms Rigby would have been able to make out an arguable case that the Deputy President erred in the ways suggested in the Notice of Appeal or that there was some other basis on which the public interest may have been enlivened, 11 we are not satisfied that Ms Rigby’s appeal had no substantial prospect of success. Prospects of success on appeal must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. The grounds of appeal identified in Ms Rigby’s Notice of Appeal had little merit, but there were other parts of the decision given on transcript in relation to which arguable grounds of appeal could have been formulated. For example, it is arguable that the decision at first instance did not sufficiently identify what the valid reasons for dismissal were or the reasoning process that led to such findings.12 Accordingly, we are not satisfied under s.611(2)(a) that Ms Rigby made her appeal without reasonable cause.
[27] For the same reasons, we are not satisfied under s.611(2)(b) that it should have been reasonably apparent to Ms Rigby that her appeal had no reasonable prospect of success.
Determination of costs application pursuant to s.400A(1)
[28] To the extent that BMS’ application for costs under s.400A(1) relies on the merits, or lack thereof, in the Notice of Appeal as filed by Ms Rigby, we reject those arguments. Section 400A of the Act is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place. 13
[29] After being served with the Notice of Appeal, BMS did point out in its correspondence to Ms Rigby weaknesses in her application for permission to appeal, including her application to extend time for the filing of the appeal. However, we are satisfied that Ms Rigby’s conduct in continuing with her appeal proceedings after receiving the correspondence from BMS’ solicitors was not an unreasonable act or omission by Ms Rigby for the reasons set out in paragraphs [21] to [26] above.
[30] Ms Rigby made a genuine attempt to prepare an appeal book in accordance with the Fair Work Commission Rules 2013 (Rules). She did not comply with all the relevant requirements in the Rules, including because she included in the appeal book documents not admitted in evidence at first instance and failed to include documents admitted in evidence at first instance. In light of the deficiencies in the appeal book prepared by Ms Rigby, BMS sought, and was granted, leave to prepare an appeal book in accordance with Rule 56(3).
[31] BMS’ preparation of an appeal book in compliance with Rule 56(3) was of assistance to the members of this Full Bench and we are grateful for it having been prepared. However, in circumstances where Ms Rigby was self-represented and she made a genuine attempt to prepare an appeal book in accordance with the Rules, we are satisfied that her failure to produce an appeal book that complied with the Rules was not an unreasonable act or omission on her part.
[32] Because Ms Rigby was not represented in the appeal proceeding and she made genuine attempts to have relevant medical evidence prepared and served once the issue was brought to her attention, we find that the fact she did not produce such medical evidence, or provide prior notice that she would not be able to produce such evidence, at the hearing on 12 July 2016 was not an unreasonable act or omission on her part.
[33] Accordingly, we find that Ms Rigby did not engage in any unreasonable acts or omissions in connection with the conduct or continuation of the appeal proceeding.
Conclusion
[34] For the reasons set out above, we dismiss BMS’ application for costs in connection with the appeal.
DEPUTY PRESIDENT
1 [2016] FWCFB 5094
2 Gugiatti v SolarisCare Foundation Ltd[2016] FWCFB 2478 at [32]-[41]
3 [2014] FWCFB 810 at [23]-[33]
4 [2011] FWAFB 4014; (2011) IR 174
5 PN25
6 Ms Rigby’s costs submissions filed on 18 September 2016
7 Appeal Decision at [8]-[10]
8 Appeal Decision at [8]-[10]
9 Appeal Decision at [9]
10 Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 at [23]-[33]
11 Appeal Decision at [20]-[27]
12 See Transcript from hearing on 10 May 2016 at PN919-925
13 Gugiatti v SolarisCare Foundation Ltd[2016] FWCFB 2478 at [61(1)]
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