Ms Sharn Stanley v QBE Management Services Pty Limited T/A QBE
[2013] FWCFB 8666
•4 NOVEMBER 2013
[2013] FWCFB 8666 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
QBE Management Services Pty Limited T/A QBE
(C2013/5852)
VICE PRESIDENT CATANZARITI | SYDNEY, 4 NOVEMBER 2013 |
Appeal against decision [[2012] FWA 7165] of Commissioner Jones at Melbourne on 12 September 2012 and decision [[2013] FWC 2968] of Deputy President Gooley at Melbourne on 6 August 2013 in matter number U2012/5472.
[1] This is an appeal by Sharn Stanley (Appellant) against a decision of Commissioner Jones and a decision of Deputy President Gooley in relation to a costs order made under s.611 of the Fair Work Act 2009 (the Act).
Background
[2] The Appellant’s employment with QBE Management Services Pty Limited T/A QBE (Respondent) was terminated summarily on 15 February 2012 for serious misconduct. It is alleged that the Appellant had defrauded the Respondent of more than $350,000.
[3] On 28 February 2012, the Appellant, who was represented at the time, filed an application for an unfair dismissal remedy pursuant to s.394 of the Act.
[4] Following correspondence between the parties concerning a jurisdictional objection the Respondent raised, namely that the Appellant was not employed for the minimum employment period, on 19 June 2012, the Appellant discontinued her unfair dismissal application.
[5] On 3 July 2012, Minter Ellison, on behalf of the Respondent, filed an application for costs pursuant to s.611 of the Act. Four decisions arose out of that application:
● On 24 August 2012, Commissioner Jones heard the application and on 12 September 2012 issued a decision awarding the Respondent costs but reserving the question of whether those costs should be awarded on an indemnity basis (First Decision). 1
● On 27 September 2012, PCC Lawyers filed a Notice of Representative Commencing to Act on behalf of the Appellant. On the same date, PCC Lawyers requested that the Commission adjourn the hearing of the application for indemnity costs on the basis that such a hearing could prejudice the Appellant’s defence in relation to criminal proceedings. On 1 October 2012, Commissioner Jones issued a decision refusing the Appellant’s application for an adjournment. 2
● On 12 December 2012, Commissioner Jones heard the Respondent’s application for indemnity costs. The Appellant was represented at this hearing by McArdle Legal. On 18 December 2012, Commissioner Jones issued a decision awarding indemnity costs for a certain period, but otherwise costs on a party-party basis. 3
● On 6 August 2013, Deputy President Gooley issued a decision quantifying the Respondent’s costs (Second Decision). 4
[6] The Notice of Appeal, lodged on 3 September 2013, stated that the appeal was against the First Decision, issued on 12 September 2012. The Fair Work Australia Rules 2010 provide that appeals must be made 21 days after a decision is issued, or “within such further time as is allowed”. Accordingly, the Appellant is required to seek an extension of time to file an appeal against the First Decision - which was filed some 334 days out of time. The Notice of Appeal states that the reason for the delay in filing the appeal is “Due to receiving Fair Work Australia’s decision late, because of circumstances out of the [Appellant’s] control”.
[7] The grounds of appeal, as outlined in the Notice of Appeal, can be summarised as follows:
● Commissioner Jones did not afford the Appellant natural justice by refusing to adjourn the hearing listed for 24 August 2012, as requested by the Appellant. In circumstances where the Commission was notified that the Appellant was not able to attend, she has been denied a reasonable opportunity to put forth her case;
● In applying s.611(2)(b) of the Act, the Commissioner applied the wrong test by failing to identify, consider or refer to the relevant characteristics of the Appellant, including that the Appellant was legally represented until 18 May 2012. The Commissioner had also erred in relying on the evidentiary material adduced by the Respondent during the proceedings rather than at the time the application was made, and by finding that it should have been reasonably apparent to the Appellant that her application had no reasonable prospects of success at 28 February 2012;
● The Commissioner erred in concluding that it should have been reasonably apparent to the Appellant that her application had no reasonable prospects of success or was manifestly untenable and groundless by making findings of fact adverse to the Appellant on the basis of evidentiary material filed by the Respondent which the Appellant had not had an opportunity to test. The Commissioner also failed to apply the Briginshaw standard;
● The Commissioner erred in reaching a conclusion that it should have been reasonably apparent to the Appellant that her application had no reasonable prospects of success or was manifestly untenable and groundless in circumstances where the Commissioner had found that the application was not made without reasonable cause; and
● The Commissioner erred in reaching a conclusion that it should have been reasonably apparent to the Appellant that her application had no reasonable prospects of success or was manifestly untenable and groundless when this required the Appellant to accept and acknowledge her guilt with respect to the alleged fraud.
[8] In the Notice of Appeal, the Appellant also sought a stay of the Second Decision. As compliance with the orders made by Deputy President Gooley were not required until 6 November 2013, the Full Bench did not consider it necessary to hear the stay application.
First Decision
[9] The First Decision of Commissioner Jones shows that the Appellant’s request for an adjournment was considered at the hearing and was refused. 5 The decision discloses that the parties were advised that the hearing was confined to the question of whether the Commission should exercise its discretion to order costs pursuant to s.611 of the Act. The Appellant had written to the Commission stating:
“I will not be able to attend on the 24th August 2012, due to my health, my doctor has advised I am in no condition and will not be able to attend, the doctor advised it would be at least 5 weeks before I would be in any condition to attend same.”
[10] The Appellant further stated:
“I am asking that my submissions be considered in my absence. I have not asked for an adjournment in order for this matter to be finalised.”
[11] It should be noted that a medical certificate was sought from the Appellant regarding her incapacity to attend the hearing, but one was not provided to the Commission.
[12] In response to communication (dated 16 August 2012) from Minter Ellison stating it would be objecting to the Appellant’s submissions “being tendered or taking into account in the proceeding”, the Appellant forwarded an email (dated 16 August 2012) to the Commissioner’s chambers stating:
“In this case unless this is resolved prior, I will be requesting an adjournment ... as it would not be a fair hearing to me if my submissions are not considered because of my absence.”
[13] By email sent on 23 August 2012 at 7:50 pm, the night before the hearing, the Appellant requested an adjournment of the hearing. The Appellant’s grounds for the adjournment referred to a Schedule of Costs filed by the Respondent at 12 noon on 23 August 2012, at the Commissioner’s direction.
[14] The Appellant’s request for an adjournment was rejected, however her submissions and evidence were considered by the Commissioner. 6
[15] The Commissioner, having considered the evidence and submissions of both parties, found that she was not satisfied that the Appellant made the application vexatiously or, with respect to the jurisdictional issue, without reasonable cause. However, the Commissioner found that costs should be awarded as it was reasonably apparent to the Appellant, at the time she made her application, that she has no reasonable prospect of success. The following extract illustrates the Commissioner’s reasoning:
“[53] I am not satisfied that on the Applicant’s own version of the facts it was clear the proceeding must fail: see Kanan’s case (supra).
[54] I note that the Applicant has and continues to deny any allegation of fraud and has, in her written submissions, denied that the Citibank account is her account. It is relevant that there have not been any findings of fact by FWA or Court on this issue.
[55] Whilst the Applicant has not provided any evidence or further material to FWA which would in some way fortify her version as to the ownership of the Citibank account, on balance I find her application for unfair dismissal remedy was not made without reasonable cause.
[56] I am, however, satisfied having regard to the documentary material that it was reasonably apparent to the Applicant that she has no reasonable prospect of success and that this circumstance applied at the time the Applicant made her application.
[57] I have had regard to the fact that, particularly where there has been no finding in FWA or other jurisdictions, a conclusion that the Applicant had no reasonable prospect of success must be exercised with extreme caution. However, in this case the documentary material relied on by QBE and set out in detail at [33] above falls, in my opinion, within the concept of unanswerable evidence of facts fatal to the Applicant’s case (see Re Spencer (supra)).
[58] True it is that the Applicant, in her written submissions, has denied the Citibank account is hers. However, the test is an objective test, directed to a belief formed on an objective basis (see Baker (supra)). The Applicant has not provided evidence of any kind of any investigation into identity fraud. Further, her failure to attend the costs hearing and provide evidence as to the basis for her denial means that the question as to whether her belief that the Citibank account is not hers was reasonable, in the face of a detailed body of documentary material to the contrary, remain untested. The Applicant’s denials are no more than an assertion of a subjective belief.
[59] It is to be noted that the Applicant did not refute, in her written submission that there existed a relationship between her and the person identified in this decision as Sarah P nor address factual material regarding the deposits made from the Sarah P CBA account into the Applicant’s Community First Credit Account.
[60] It is significant that the Applicant, in an interview with QBE on 17 February 2012 and in her witness statement filed on 23 April 2012, denied knowledge of Sarah P. Clearly, having regard to the emails and financial transactions between the Applicant and Sarah P, this denial is baseless.
[61] It is incontrovertible that the Applicant and Sarah P had a personal relationship as evidenced by the numerous emails and the content of those emails between the two, and the payments from Sarah P CBA Accounts to the Applicant. On the documents available it can be concluded these facts were known to the Applicant at the time she made her application. There is also no doubt that the post office box address for the Sarah P CBA Accounts and the Applicant’s Community First Credit Account are the same and that numerous unauthorised payments were made into the Sarah P CBA Accounts.
...
[65] The consequence is that the fact of the deposits of large sums of unauthorised transactions into the Citibank account and the transfer of monies from Sarah P’s CBA Accounts into accounts held by the Applicant and into the Citibank account, renders in my opinion, the application for unfair dismissal remedy so lacking in merit or substance so as to be not reasonably arguable. I agree with QBE that any deficiencies in procedure could never overcome the incontrovertible documentary evidence.
[66] I am satisfied that it was reasonably apparent to the Applicant at the time she made her application, that there was no reasonable prospect of success. I am further satisfied that in the circumstances of this case I should exercise my discretion under s.611 of the Act by determining that the Applicant must bear the costs incurred by QBE from the date she made her application, 28 February 2012.”
[16] Accordingly, the Commissioner decided that a costs order should be issued, with the issue of whether costs should be awarded on an indemnity basis, and the exact quantum of those costs, to be determined at a later date.
Submissions
[17] The Appellant submitted that the hearing on 24 August 2012 went ahead despite her request for an adjournment which was made based on valid reasons. The written submissions of the Appellant go on to restate the grounds of appeal, as outlined in the Notice of Appeal. There is no need to repeat those grounds here.
[18] The Appellant went on to make brief submissions against the Second Decision of Deputy President Gooley. The submissions state that the decision was made without the Appellant being able to make submissions due to circumstances at the time the decision was handed down. It was also submitted that “recent investigation” had found that the bill of costs submitted by the Responded at the hearing is “unreasonable and grossly overcharged”.
[19] From these submissions, we take it that the Appellant is seeking permission to appeal the First Decision and the Second Decision. As the Notice of Appeal was filed 27 days after the Second Decision, the Appellant is also required to seek an extension of time to file the appeal with respect to the Second Decision.
[20] It was submitted by the Appellant that there was public interest in permitting the appeal due to the “significant errors of fact” and the lack of procedural fairness afforded to the Appellant.
[21] In reply, the Respondent submitted that a matter which was brought to the Full Bench’s attention earlier in this appeal, which was not addressed in any real detail by the Appellant, is of particular relevance. On 3 October 2012, PCC Lawyers, on behalf of the Appellant, lodged an appeal against the First Decision of Commissioner Jones in substantially the same terms as the current appeal (First Appeal). 7 The First Appeal was subsequently listed for hearing on 24 October 2012. However, on 9 October 2012, PCC Lawyers wrote to Minter Ellison offering to settle that appeal on the basis that the appeal be discontinued and each party bear their own costs. The Respondent accepted this offer and the Appellant filed a Notice of Discontinuance on 9 October 2012. As one would expect, evidence was filed by the Respondent to support these submissions.
[22] It was submitted that this appeal constitutes the re-agitation of the First Appeal (in which the Appellant was represented) which was the subject of an accord which was satisfied. Accordingly, it follows that the Appellant is precluded from further litigation of the original compromised claim. It was submitted that on that basis alone, the appeal cannot be maintained.
[23] In the alternative, it was submitted that an extension of time should not be granted to the Appellant to appeal the First Decision as she is not able to satisfy the Full Bench that an extension is warranted because:
● there are no satisfactory reasons for the delay;
● the length of the delay is substantial;
● the appeal is with respect to discretionary decisions and the appeal grounds are without merit; and
● there would be substantial prejudice (in terms of time and costs) to the Respondent if time were extended.
[24] Furthermore, it was submitted that permission to appeal should not be granted as no public interest issues arise and that the grounds of appeal do not disclose an appealable error as the Appellant was afforded procedural fairness and the Commissioner did not err, in fact or in law.
[25] The Respondent sought to have the appeal dealt with on the papers, and following the confirmation by the Appellant on 18 October 2013 that she consents to the appeal being determined on the papers, in accordance with s.607(1) of the Act, the Full Bench considered it appropriate to adopt that course of action. We considered that the appeal can be adequately determined without the parties making oral submissions.
Consideration
[26] Given that the appeal was filed considerably out of time with respect to the First Decision, and six days out of time with respect to the Second Decision, the Appellant must satisfy the Full Bench that time should be extended to appeal against the two decisions.
[27] Furthermore, the appeal is brought pursuant to s.604(1) of the Act and accordingly, the Appellant is required to obtain permission from the Commission to appeal the decisions below. The conventional considerations for the granting of permission under s.604(1) apply, namely whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice would result if permission was refused. Section 604(2) of the Act also provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so.
[28] In GlaxoSmithKline Australia Pty Ltd v Colin Makin 8 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[29] Furthermore, the First Decision is properly viewed as a discretionary decision and the approach to be taken by the Full Bench is outlined by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 9 Although the High Court decision concerned s.45 of the Workplace Relations Act 1996,it is equally applicable to s.604 of the Act.
[30] The appeal is to be considered in accordance with the principles of House v R. 10 Those principles are as follows:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
First Decision
[31] We accept the uncontested evidence of the Respondent that the Appellant has filed the First Appeal, in substantially the same terms as this appeal, and that, as part of a settlement agreement, the Appellant through her legal representatives discontinued the First Appeal.
[32] The Appellant has not provided any explanation or submissions as to why she should be permitted to re-agitate the First Appeal, beyond stating in her written submissions that “The [First Appeal] was cancelled by PCC Lawyers due to a change in Miss Stanley’s personal circumstances.”
[33] As was noted by Besanko J in Australian Postal Corporation v Gorman 11:
“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.”
[34] Accordingly, we find that an extension of time to file an appeal against the First Decision should not be granted to the Appellant. The Appellant has discontinued the First Appeal against the First Decision, and in return the Respondent has not pursued a costs order against the Appellant with respect to the First Appeal. The Appellant should not be permitted to re-agitate that appeal.
[35] Given the finding above, there is no need for the Full Bench to consider permission to appeal or the merits of the appeal, however, we are of the view that the Commissioner’s decision in any event does not disclose an appealable error and the grounds of appeal do not have merit. In our view, the Commissioner applied the correct principles, considered all the evidence, made findings open to her on the evidence, and provided the Appellant with procedural fairness. As noted by Deane J in Sullivan v Department of Transport 12:
“It is important to remember that the relevant duty of the tribunal is to ensure that a party is given a reasonable opportunity to present its case. Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which it is entitled.”
[36] The Appellant, in various correspondences to the Commission, consented to the matter proceeding in her absence, and then sought an adjournment as she was unwell to attend in person, although a medical certificate to that effect was never provided to the Commission. Although the Appellant may not have taken the best advantage of the opportunity to which she was entitled, it cannot be said that she was not provided with a reasonable opportunity to present her case.
Second Decision
[37] As stated above, the Notice of Appeal does not seek to appeal against the Second Decision, although the three paragraphs dedicated to the Second Decision in the Appellant’s written submissions suggests that she is also dissatisfied with the quantum orders made by the Deputy President.
[38] We note that the Notice of Appeal and the ground of appeal contained within it do not disclose any ground against the Second Decision.
[39] Having reviewed the decision of the Deputy President, which was not made available to the public due to the sensitive information contained within it - -namely the bill of costs submitted by Minter Ellison, we do not see any error in the findings contained therein. It should be noted that the Appellant, who was invited to file written submissions with respect to the quantum/ taxation issue, sent a letter to the Commission on 29 July 2013. The letter, amongst other things - which the Appellant requested be kept confidential, stated:
“After my issue being reviewed by legal, it has been decided I will not be making any submissions to your costs application on the basis that your final decision will be appealed.”
[40] In light of the above correspondence, it cannot be said that the Appellant was not afforded procedural fairness. Once again, the Appellant has simply not taken advantage of the opportunity to which she was entitled.
[41] Accordingly, to the extent that the Appellant seeks to appeal the Second Decision, we do not consider there to be any merit in the appeal such to warrant an extension of time to appeal the Second Decision.
Conclusion
[42] In light of the above findings, the Full Bench does not grant the Appellant an extension of time to file the Notice of Appeal against the First Decision, and to the extent sought, the Full Bench also does not grant the Appellant an extension of time to appeal against the Second Decision.
VICE PRESIDENT
1 [2012] FWA 7165.
2 [2012] FWA 8397.
3 [2012] FWA 10164.
4 [2013] FWC 2968 - not published.
5 [2012] FWA 7165 at [5].
6 Ibid at [35]-[37].
7 Matter C2012/1212.
8 [2010] FWAFB 5343 at [27].
9 [2000] 203 CLR 194, [2000] HCA 47.
10 [1936] 55 CLR 499.
11 [2011] FCA 975 at [31].
12 (1978) 20 ALR 323 at 343.
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