New England and Western Tenants Advice and Advocacy Service Inc v Annabel Doherty
[2014] FWCFB 150
•8 JANUARY 2014
[2014] FWCFB 150 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Annabel Doherty
(C2013/6060)
VICE PRESIDENT HATCHER | SYDNEY, 8 JANUARY 2014 |
Application for costs of appeal - Fair Work Act 2009 s.611 - application dismissed.
[1] In a decision given ex tempore on 21 November 2013 and published later that day 1 we refused permission for New England and Western Tenants Advice and Advocacy Service Inc (NEWTAAS) to appeal a decision of Deputy President Booth of 30 August 20132. On 25 November 2013, Annabel Doherty, the respondent to NEWTAAS’s appeal, lodged an application for NEWTAAS to pay her costs of the appeal pursuant to a number of the provisions of the Fair Work Act 2009 (the Act), including s.611. On 4 December 2013, NEWTAAS lodged what appears to have been a provisional application against Ms Doherty concerning the costs at first instance, but we understand that application to have been withdrawn on 11 December 2013.
[2] Section 611 of 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.
(3) A person to whom an order for costs applies must not contravene a term of the order.”
[3] We determined that Ms Doherty’s costs application would be dealt with by way of written submissions. In her submission in support of her costs application lodged on 11 December 2013, Ms Doherty contended that NEWTAAS’s appeal was made both vexatiously and without reasonable cause. We note that the submission relied on s.570 in this connection. That provision is not applicable to the Commission; the relevant provision in the Act is s.611, which we have set out, and we will take Ms Doherty’s application as one which invokes s.611(2)(a) (which is similar to s.570(2)(a) in the use of the qualifying criteria “vexatiously or without reasonable cause”). Ms Doherty submitted, among other matters, that NEWTAAS merely re-agitated matters it had raised at first instance, had been unable to cite any evidence supporting its contention of House v The King 3 error, and had not argued any error of law. She further submitted that it could be inferred from the lack of merit in NEWTAAS’s appeal that it was made only to “further harass and embarrass the Employee” and to punish her by forcing her to incur further legal costs.
[4] NEWTAAS’s reply submission was lodged on 16 December 2013. Shortly stated, it submitted that none of the preconditions for the making of a costs order under s.611 applied in this case. Its motivation in lodging its appeal was that it was “genuinely aggrieved” by the decision of the Commission in the first instance. The mere fact that it was unsuccessful in obtaining the grant of permission to appeal did not mean, it submitted, that its appeal was lodged without reasonable cause.
[5] We adopt the approach taken to the application of s.611(2)(a) by the Full Bench in Qantas Airways Limited v Carter 4 as follows:
“[17] We refer to the approach we have taken to considering if the provisions of s.611(2)(a) or s.611(2)(b) are established. We first deal with the application made on the basis that Qantas has made its appeal vexatiously. The approach generally taken by members of the Commission as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust (Nilsen). Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by his Honour was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. About this provision his Honour said:
“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. 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 a collateral advantage.”
[18] The approach we have taken to whether Qantas instituted its appeal without reasonable cause, is to consider whether at the time of instituting the appeal there was no substantial prospect of success.”
[6] A case does not have “no substantial prospect of success” merely because it fails. As Gibbs J said in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia 5:
“... a party cannot be said to have commenced a proceeding ‘without reasonable cause’, within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s.197A.”
[7] We do not consider there is any basis upon which we can conclude that NEWTAAS’s motive in bringing the appeal was to harass or embarrass Ms Doherty, or that it had some other improper collateral motive in doing so. It is clear from a reading of the Deputy President’s decision and the evidentiary materials in the appeal books that Ms Doherty’s dismissal followed a major breakdown in her relationship with NEWTAAS’s management, and that NEWTAAS’s management was strongly of the belief that there was a proper basis for the dismissal. Having in the decision under appeal been subject to a finding that Ms Doherty’s dismissal was harsh and an order to pay her 14 weeks’ pay, we have no doubt that NEWTAAS was, as it submitted, genuinely aggrieved by the decision, and brought the appeal for no reason other than to have the decision reversed on the grounds identified in its notice of appeal. It cannot be concluded therefore that the appeal was made vexatiously.
[8] Nor do we consider that the appeal was made without reasonable cause. The Deputy President in the decision under appeal found, against Ms Doherty’s submissions, that there was a valid reason for the dismissal, and it is clear from the Deputy President’s reasons that there was a fairly fine balance involved in her discretionary conclusion that the dismissal was harsh. For example, the Deputy President said:
“[110]This is not a straightforward case of an unmeritorious applicant. Much of what the respondent complains of occurred and my sympathies go to the hard working members of the management committee trying to keep an important community service on the rails, however the applicant was treated shabbily. She provoked some of this treatment however it behoves management in whatever kind of organisation they are running to act maturely and reasonably in managing the conduct and performance of employees.”
[9] It is not surprising in those circumstances that NEWTAAS brought an appeal in which it attempted to demonstrate that the Deputy President erred in the inferences she drew from the primary facts and that the exercise of her discretion miscarried as a result. Although its case in that respect failed, we do not consider that it was “unworthy of consideration”. Indeed, as noted in our earlier decision at paragraph [9], although the decision of the Deputy President was one which was reasonably open to her to make, we may not have made the same decision ourselves.
[10] Ms Doherty has not made out a case satisfying the statutory prerequisites for an order for costs under s.611(2)(a) of the Act. Her costs application is therefore dismissed.
VICE PRESIDENT
Final written submissions:
For Ms Annabel Doherty on 11 December 2013.
For New England and Western Tenants Advice and Advocacy Service Incon 16 December 2013.
1 [2013] FWCFB 9206
2 [2013] FWC 6385
3 (1936) 55 CLR 499
4 [2013] FWCFB 1811
5 (1978) 140 CLR 470 at 473
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