Peter Noiszewski and Brenton Smith v Prosegur Australia Pty Ltd T/A Prosegur - [2018] FWC 7088

[2018] FWC 7088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Noiszewski and Brenton Smith

Prosegur Australia Pty Ltd T/A Prosegur

(U2018/2742) and (U2018/3478)

COMMISSIONER WILLIAMS

PERTH, 18 DECEMBER 2018

Applications for an unfair dismissal remedy - applications for costs.

This decision concerns two applications for costs relating to unfair dismissal remedy applications, U2018/2742 Mr Peter Noisezewski v Prosegur Australia Pty Ltd T/A Prosegur and U2018/3478 Mr Brenton Smith v Prosegur Australia Pty Ltd T/A Prosegur.

The costs applications are effectively in identical terms.

The cost applications are made under section 401 of the Fair Work Act 2009 (the Act) and seek an order for costs to be made against the Mr Glenn Ferguson (Mr Ferguson or the Costs Respondent) of TransportEdge Inc, apparently the paid agent for both employee applicants in the unfair dismissal remedy applications.

No cost orders are sought against the employee applicants themselves.

Background

Both applicants were dismissed on the grounds of redundancy at around the same time in substantially similar circumstances.

The two unfair dismissal remedy applications were allocated to Deputy President Binet for determination and the applications were joined.

Deputy President Binet notified the parties that a Determinative Conference would be held on 24 July 2018.

Eleven days before that date Mr Ferguson filed a notice of discontinuance for each application.

Prosegur Australia Pty Ltd T/A Prosegur (Prosegur or the Costs Applicant) submits that a proper assessment of the relative strengths of the parties’ cases and their relative prospects of success in relation to both liability and the relief sought was, or should have been, apparent to Mr Ferguson well before the time the applications were discontinued.

The Costs Applicant submits that there were three categories of unreasonable acts or omissions by Mr Ferguson which caused the Costs Applicant to incur costs. Firstly the unreasonable last-minute discontinuance, secondly the unreasonable manner of conducting settlement negotiations and finally an unreasonable application for the production of documents.

The total costs claimed for the two application combined is $11,275.

Factual findings

At the hearing of the costs applications no witnesses were called by either side.

Prosegur relies upon the correspondence and other documents attached to its costs applications plus the witness statements, documents and authorities filed in the substantive proceedings to the extent that they are relevant to the costs applications. Prosegur submit that although the witness statements and documents were not tendered as evidence because the substantive applications were discontinued before hearing, it is appropriate to have regard to their content in relation to these costs applications because those documents were part of the material that was known to Mr Ferguson prior to the substantive matters being discontinued.

Prosegur filed its form F3−Employer Response for Mr Noisezewski’s application on 23 March 2018 and for Mr Smith’s application on 16 April 2018.

Prosegur also rely on the directions issued by the Deputy President Binet on 5 July 2018 as a convenient timeline of the key events.[1] Those directions are set out below.

“DEPUTY PRESIDENT BINET PERTH, 5 JULY 2018

[1] On 15 March 2018, Peter Noiszewski (Noiszewski) filed an application (Noiszewski Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Prosegur Australia Pty Ltd (Prosegur).

[2] On 4 April 2018, Brenton Smith (Smith) filed an application (Smith Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Prosegur Australia Pty Ltd (Prosegur).

[3] A telephone conciliation was conducted by staff conciliator on 16 April 2018 in relation to the Noiszewski Application, but the dispute between the parties could not be resolved.

[4] A telephone conciliation was conducted by staff conciliator on 8 May 2018 in relation to the Smith Application, but the dispute between the parties could not be resolved.

[5] Both the Noiszewski Application and the Smith Application were referred to the FWC’s unfair dismissal arbitration roster.

[6] The Respondent in each Application is Prosegur. Mr Noiszewski and Mr Smith are both represented by Glenn Ferguson (Ferguson) of TransportEdge Inc. On 18 May 2018, Mr Ferguson requested that both Applications be heard jointly. Prosegur indicated they did not object to this request.

[7] On 16 May 2018 directions were issued to the parties to file materials in advance of the hearing of the Application (First Directions).

[8] On 4 June 2018 the following materials were filed on behalf of Mr Noiszewski and Mr Smith:

a. An Outline of Submissions.
b. List of Documents and Authorities
c. Statements of evidence of Mr Smith, Mr Noiszewski and Mr Rayed Fadialla. The witness statements are unsigned and undated (Applicant’s Filed Witness Statements).

[9] On 15 June 2018 the following materials were filed on behalf of Prosegur:

a. An Outline of Submissions.
b. A number of documents.
c. Witness statements of Mr Paul Brennan, Mr Grant Narbey, Mr Tim Stylianou and Ms Karen Carnie.

[10] In light of this, the matters have been listed for a joint conciliation conference before Deputy President Binet in Perth at 10:00am, Wednesday 11 July 2018 (Conciliation Conference). This is a further opportunity for the parties to undertake conciliation, and if necessary, determine arrangements for the hearing and determination of the matter.

[11] In the event an Application cannot be resolved at the Conciliation Conference, the Application will be listed for hearing and determination by way of a Determinative Conference before Deputy President Binet at 10:00am, Tuesday, 24 July 2018. A checklist of the issues to be addressed by the parties at the Determinative Conference is attached. A guide to the calculation of compensation is also attached.

[12] Should the parties prefer that the Application be heard by way of a Hearing instead of a Determinative Conference, a request should be made in writing to [email protected] by close of business, Thursday 12 July 2018.

[13] In addition to the materials the parties were directed in the First Directions to file, the parties are directed to file the additional documentation listed below.

[14] The FWC DIRECTS Mr Noiszewski and Mr Smith to jointly file in the FWC and serve on Prosegur, by close of business, Thursday 12 July 2018:

a. A signed and dated copy of each of the Applicant’s Filed Witness Statements.
b. Evidence of all earnings since their dismissal by Prosegur.

[15] The FWC DIRECTS to Prosegur to file in the FWC and serve on Mr Noiszewski and Mr Smith, by close of business, Thursday 12 July 2018:

a. A copy of any authorities on which Prosegur relies.
b. A List of Documents on which Prosegur relies.

[16] The FWC DIRECTS Mr Noiszewski, Mr Smith and Prosegur to jointly prepare and file in the FWC an Agreed Statement of Facts which will be admitted into evidence and considered not in dispute by no later than close of business, Thursday 19 July 2018. The Agreed Statement of Facts should identify the facts in agreement, and separately, those facts in dispute which require resolution in the determination of the Application. Having been admitted into evidence, it is not necessary for those facts to be adduced as part of the Hearing.

[17] The parties must notify each other and the FWC, if any witnesses are not required for cross examination by close of business on Thursday 19 July 2018. All other witnesses must attend the hearing in person from the listed date and time for the hearing, until discharged.

[18] If either party seeks to be represented by a lawyer or a paid agent at the Hearing, a brief submission (request) should be filed in FWC and served on the other party by close of business, Thursday 12 July 2018. Any submissions with respect to representation should address the provisions of section 596(2) of the FW Act. A copy of s.596(2) is attached.

[19] If a party wishes to object to such a request, a brief submission from that party setting out their objections should be filed in the FWC and served on the other party by close of business, Thursday 19 July 2018.” (Original emphasis)

Application for order to produce documents

On 9 July 2018 Mr Ferguson filed an application for F52−Order to produce documents for U2018/2742. The documents sought where,

· All time cards from, 1 January 2018 progressing forward weekly to the present date for each Armoured Vehicle Operator employed as Full -time employee or Casual employee; and

· Documents that reveal the total number hours provided to sub-contractors to Prosegur, for Cash in Transit work worked from 1 January 2018 progressing forward weekly to the present date; and

· Documents that reveal the total number of hours provided to Field Officers; when requested to perform AVO duties such as soft skin work. identified within the statements of evidence from 1 January 2018 progressing forward weekly to the present date; and

· The time cards for all supervisory staff members who have performed AVO duties, identifying the dates and hours worked whilst conducting AVO duties from, 1 January 2018 progressing forward weekly to the present date.

Why is each document was being sought was explained by Mr Ferguson as follows,

The records requested; is relevant evidence of a “fact in issue” that goes to an essential ingredient which needs to be established in the claim or the defence of the claim.

Mr Noisezewski will not pursue their arguments related to “genuine operational reasons” or seek reinstatement where there is no prospect of success in pursuing that line of argument if the stated evidence be verified prior to hearing and as such the records requested for discovery have the potential for the applicant to discontinue his application; and

The provision of records assists the public interest; in not unnecessarily making use of the Fair Work Commission resources for the previous point above.

The employment of both employees was covered by the Chubb Security Services Ltd Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011–2015 [AE892362] (the Agreement).

Clause 29−Redundancy of the Agreement reads as follows,

“29 Redundancy

This redundancy clause refers and applies to Chubb Security Services Ltd. in Western Australia only, and is in no way to be used as a precedent and will apply for the life of this Agreement only.

29.1.1Where the Employer decides that a job an employee/s has been doing is no longer required and that decision may lead to termination of employment, the Employer will consult with the affected employee/s as soon as practicable after the Employer has made the decision...”

Subclause 29.1.2 of the Agreement includes the following provision,

“A minimum of 3 weeks notice will be given.”

The Commission’s decision approving the Agreement [[2012] FWAA 2170] noted that the Agreement does not contain a consultation clause and consequently the approval decision provides that the model consultation term is taken to be a term of the Agreement.

The model consultation term is as follows.

“Schedule 2.3 Model consultation term
(regulation 2.09)

Model consultation term

(1) This term applies if:

(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

(2) The employer must notify the relevant employees of the decision to introduce the major change.

(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(4) If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.

(5) As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion — provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

(10) In this term, relevant employees means the employees who may be affected by the major change.” (Original emphasis)

Neither of the form F3−Employer Response filed by Prosegur on 23 March 2018 and 16 April 2018 respectively identified any jurisdictional objection, notably they did not rely on the dismissal being a case of genuine redundancy. Both of the form F3−Employer Responses stated that, in the case of Mr Noisezewski on 23 February 2018 and Mr Smith on 16 March 2018, the respective applicant was advised at the end of his shift that his position was redundant and he was provided with a letter to that effect which included various pay-out calculations. The employee was then escorted from the company’s property.
Notwithstanding the employer’s position as explained above in the form F3s the materials filed by Prosegur on 15 June 2018 in response to the first directions issued by Deputy President Binet expressly argue that the terminations of the employees each was a case of genuine redundancy within the meaning of section 389 of the Act.[2]

As part of these proceedings the Costs Respondent has provided a copy, to the Costs Applicant and the Commission, of email correspondence between Mr Ferguson and the two Applicant employees dated 3 July 2018.[3]

The email from Mr Ferguson forwarded the final settlement offer made by the Costs Applicant to finalise the unfair dismissal remedy applications. That settlement offer was contained in an email of the same date, 3 July 2018. That offer was payment of one additional weeks’ redundancy pay to each employee plus agreement by them to discontinue their applications and sign a settlement agreement containing a full relief release from all claims.

In summary Mr Ferguson’s email address to both employees says he is bound to place the offer to them as their agent representative.

Mr Ferguson’s email then provides advice, firstly to Mr Smith wherein he suggests that one weeks’ additional compensation, whilst distasteful, provides his family some additional financial resource. He also advised him that there is a possible costs issue of his application proceeding when it has no chance of success and that the one week offer assists the Costs Applicant in pursuing such an argument for costs.

To Mr Noisezewski Mr Ferguson advises that his claim for seven weeks’ compensation remains on track and he suggests a counter offer to the Costs Applicant of around five to six weeks’ pay.

On 4 July 2018 Mr Ferguson by email to the Costs Applicant’s representative advised what Mr Noisezewski response was to their settlement offer by including what I take to be extracts of an email to Mr Ferguson from Mr Noisezewski where the employee advises him as follows,

“After closely reading Simone Caylock email in regards to Prosegur offer of one week redundancy pay to resolve the matter, as my paid agent, I advise you with my response.

I will not be accepting their one week offer but I put forward a counter offer, requesting nothing less than six weeks of redundancy pay.

Furthermore to their clauses in the email, I will not be signing a settlement agreement containing a full release from all claims.” (sic)

Mr Ferguson’s email to the Costs Applicant continued on to explain that the employee would enter into a deed of settlement related to his current unfair dismissal claim only.

On 5 July 2018 Mr Ferguson by email to the Cost Applicant’s representative advised that Mr Smith will accept a settlement of his claim of one weeks’ wages but he will only enter into a settlement agreement as it relates to his present claim.

On 6 July 2018 the parties swapped correspondence regarding the issue of the scope of the release in any deed of settlement for Mr Smith. On the same date by a separate email Ms Caylock advised that Prosegur was not prepared to accept Mr Noiszewski’s offer to settle for an additional six weeks redundancy pay and was not prepared to increase its previous offer of one weeks’ pay.

On 12 July 2018 Ms Caylock emailed Mr Ferguson advising that during a conference (assumedly the conference conducted by Deputy President Binet the day before) agreement had been reached that the settlement amount would be increased to 3 weeks’ pay on the basis of proposed amended wording for the release which had been discussed. The email then noted that if Prosegur was put to further expense in defending Mr Smith’s claim they may make applications for costs.

On 12 July 2018 Ms Caylock also emailed Mr Ferguson advising that during the conference on the previous day Mr Noiszewski had initially agreed to accept the offer of one weeks’ pay but subsequently stated that…“after talking to my representative, I won’t be signing anything.” The email urged that Mr Noisezewski reconsider his position and Prosegur’s offer and requested confirmation of his position, by no later than 11:00 a.m. Friday, 13 July 2018. The email then noted that if Prosegur was put to further expense in defending Mr Smith’s claim they may make applications for costs.

The next day 13 July 2018 at 12:25 p.m. Mr Ferguson responded to Ms Caylock as follows,

“Mr Noisezewski’s position is misunderstood. Mr Noisezewski will file a notice of discontinuance in exchange for the one-week wage offer.

I can assure you my advice did not go beyond the above. I hope that clarifies the situation.

Please advise if your client will finalise as described above.”

The same day, 13 July 2018, 34 minutes later at 12:59 p.m., unexpectedly and not as part of any settlement agreement Mr Ferguson emailed Ms Caylock advising he had received instructions from both employees to discontinue their applications and that notices of discontinuance would shortly be lodged for both applicants. Notices of Discontinuance were filed later that afternoon.[4]

As can be seen from the above directions issued by Deputy President Binet had the matters not been discontinued when they were, the Determinative Conference would have proceeded 11 days later on 24 July 2018.

Submissions

Costs Applicant’s submissions

Prosegur submit that the applicants engaged Mr Ferguson of TransportEdge as a paid agent to represent them in their respective matters and were required to seek the Commission’s permission to be represented under section 596 of the Act. Accordingly, section 401 of the Act which deals with costs orders against lawyers or paid agents applies.

Section 401(1)(A)(b) of the FW Act provides that “the FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because...of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.”

The Costs Applicant submits intentional actions by a party may be unreasonable acts, and unintentional actions may be unreasonable omissions[5].

As identified earlier in this decision the Costs Applicant submits that there were three categories of unreasonable acts or omissions by Mr Ferguson which caused the Costs Applicant to incur costs. Firstly the unreasonable last-minute discontinuance, secondly the unreasonable manner of conducting settlement negotiations and finally an unreasonable application for the production of documents.

Unreasonable last minute discontinuance

It is submitted the Costs Respondent advised and/or encouraged the applicants to continue with their applications right up until eleven days before the Determinative Conference and then, without any prior warning or as part of any settlement, abruptly filed a notice of discontinuance on 13 July 2018.

The material filed by the Costs Applicant, and available to the Cost’s Respondent well before the Determinative Conference, cogently articulated evidence that would or should have led to the view that the applicants were unlikely to succeed in their claim for reinstatement and that they may not succeed in establishing that the terminations were harsh, unjust or unreasonable or result in anything more than a nominal remedy being awarded.

Prosegur submits much of the evidence was not in dispute including that:

(a) Prosegur had lost a major national contract ANZ (34% of its revenue) and had not won new work sufficient to replace the lost ANZ work (resulting in a significant reduction in revenue and labour hours required); and

(b) Following the applicants’ redundancies, the number of full time AVO positions were reduced and neither the positions of the applicants nor other full time AVOs who had left subsequently were replaced.

The Costs Respondent holds itself out as having a “team of experienced professional industrial relations practitioners who have worked in support of workers’ entitlements and rights over many years” and who can assist with “representation for unfair dismissal”. The Costs Applicant contents whilst not legally qualified, Mr Ferguson and TransportEdge Inc should still be measured against a higher standard than that which would apply to an unrepresented party by virtue of this experience. It is also relevant that TransportEdge Inc is the bargaining representative for a number of Prosegur’s employees and has held this role for a considerable period. As such, the Costs Respondent has a degree of exposure to and first-hand knowledge of the workplace and operation of the Costs Applicant’s business that a paid agent who is engaged by a single employee solely after his or her dismissal would not have.

Despite this experience and broader level of engagement with the Costs Applicant and its employees, the Costs Respondent continued to maintain that the redundancies were not based on genuine operational reasons because Prosegur subsequently continued to offer overtime to remaining full time employees, and employ casuals and engage sub-contractors. It is submitted the Costs Respondent should have been aware, a redundancy occurs when the positions of the relevant employees are no longer required to be done by anyone and can include a decision by an employer to reduce the number of full time employees because overall work has reduced and the remaining work can be performed by existing full time employees (including working overtime as and when required), casuals, external contractors and other employees including supervisors.

It was therefore unreasonable for the Costs Respondent to “hold out” (or encourage the applicants to continue their applications) until the last minute (thereby causing Prosegur to incur costs unnecessarily) rather than making an early, realistic assessment of the respective cases and advising the applicants accordingly, which is submitted would likely have led to a decision by both applicants to discontinue at a much earlier time.

It is submitted the Costs Respondent’s failure to take steps to inform the Cost Applicant of the applicants’ intentions (including that they intended to pursue the Respondent in another forum) at an earlier time was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable and those unreasonable acts or omissions caused the Costs Applicant to incur costs in connection with the conduct or continuation of the matter.

Unreasonable manner of conducting settlement negotiations

Prosegur also submit the manner in which the Costs Respondent conducted settlement negotiations made a settlement that was beneficial to both parties extremely difficult, leading to costs being incurred which could have been avoided and leading to unnecessary further proceedings.

The applicants sought reinstatement and compensation in their applications and remained adamant about being reinstated, notwithstanding the uncontested evidence mentioned above. The first time the Costs Respondent advised Prosegur that the applicants would accept a financial settlement which did not involve reinstatement was 4 July 2018.

It is submitted it was unreasonable for the Costs Respondent not to explore a settlement which did not involve reinstatement after the conciliation conferences before the Commission. A reasonable representative would have formed the view by this time or by 15 June 2018 (when Prosegur’s evidence was filed) at the latest that, in all the circumstances of this matter as set out in the pre-hearing materials as well as the information known to him privately, the Commission would have been unlikely to order reinstatement or compensation above an additional one-two days’ pay.

The Costs Respondent acted unreasonably in advising or encouraging the applicants to refuse to explore any basis for settlement that did not involve reinstatement until 4 July 2018 (or 5 July 2018 in the case of Mr Smith). At that point, considerable costs had already been incurred by the Costs Applicant.

It is argued the failure to settle the matter at an early opportunity or to take account of the likely orders from the Commission even if the applicants were successful was unreasonable. The manner in which the Costs Respondent approached and conducted settlement discussions disadvantaged the applicants as well as Prosegur.

Unreasonable application for production of documents

Lastly Prosegur argues the Costs Respondent sought the production of documents from the Costs Applicant without any proper basis for doing so. The “discovery” request was made initially in writing to the Costs Applicant’s representative and, when that was refused on the grounds that it was unreasonable and unnecessary, the Costs Respondent made a formal application for an order to produce to the Commission.

The request for production of documents was unreasonable it is submitted because the documents sought had no or minimal probative value having regard to the issues to be determined and the evidence which had already been filed by the parties yet would have put the Costs Applicant to considerable time, inconvenience and cost to search for and produce the documents. The request was also unreasonable because it appears to have been based on a misguided belief by the Costs Respondent that to successfully defend the unfair dismissal claims Prosegur would have to produce documentary evidence to corroborate its witness evidence, in circumstances where its witness evidence on those matters was uncontested. The request should also be viewed as a “fishing expedition” to enable the Costs Respondent to access confidential information for a collateral purpose such as the other proceedings alluded to in the email referred to above.

The Costs Applicant incurred costs in considering and responding to the initial request for production of documents, even though the application for an order to produce was not determined before the substantive applications were discontinued.

For the reasons set out above, the Costs Applicant submits that it is appropriate for the Commission to exercise its discretion to grant the costs orders sought.

Costs Respondent’s submissions

The Costs Respondent submits it is not put against the Costs Respondent that there were no reasonable prospects of success when the matter was commenced as described in section 401(1A)(a) of the Act. It is also noted also, at the time of filing Mr Noiszewski’s unfair dismissal application he was represented by Fogliani Lawyers and not by the Costs Respondent.

It is highlighted that the Costs Respondent, following instructions from the applicants, discontinued both applications prior to a hearing.

The basis for the original unfair dismissal claims has some relevance to the Commission’s assessment of the current claim for costs.

Some of the rationale for the two unfair dismissal claims was that the respective terminations were not genuine redundancies. It was also contended that the redundancies did not follow the model consultation clause adopted by the Agreement in that there was no process of negotiation engaged in prior to the redundancies taking place. It is therefore submitted that there was an arguable basis to initiate both unfair dismissal claims.

It is submitted the email from the solicitors for the Costs Applicant attached to the application for costs is in some ways consistent with the view that a more detailed consultation process was required and it is not sufficient to characterise this issue as corresponding to at most a value of one or two days compensation.

The Costs Respondent says there was no consultation conducted by Prosegur as required by the Agreement therefore there was an issue to be tried in the unfair dismissal claims and it is not correct to assess the applicants’ applications as lacking prospect of success.

The applications for costs are made solely against the representative party. It is always necessary to be able to attribute the purported unreasonable act or omission to the party against whom costs are sought.

It is incumbent on the Costs Applicant to establish that the act or omission of the Costs Respondent has meant that the two unfair dismissal claims had progressed in a way detrimental to the Costs Applicant which would not have occurred in the absence of that act or omission.[6]

Unreasonable last minute discontinuance and unreasonable manner of conducting settlement negotiations

It is submitted that as a matter of logic, the last minute discontinuance cannot in itself have caused any loss on the part of the Costs Applicant. This act marks the end point of the Costs Applicant having to fund its legal response to the unfair dismissal claims rather than being a separate cause of legal expenditure.

It is also submitted that there is no discernible means to confirm that the first and second of the alleged unreasonable acts or omissions relied on by the Costs Applicant were acts or omissions of the Costs Respondent, as distinct from a representative following the instructions of his or her client.

The email from the Costs Respondent, dated 4 July 2018 and attached to the applications for costs, contains an extract of the actual instructions received from Mr Noiszewski in relation to the potential settlement of his unfair dismissal claim.

It is clear that the issue of the settlement deed containing a full release was a live issue for Mr Noiszewski. The emphasised “I will not be signing a settlement agreement containing a full release from all claims” was not the emphasis or the drafting of the Costs Respondent.

It is also clear that Mr Noiszewski has arrived at this position “[a]fter closely reading Simone Caylock email in regards to Prosegur offer of one week redundancy pay.” (sic)

On 3 July 2018 the Costs Respondent provided a brief email advice to both applicants in the unfair dismissal claim.[7] Both Mr Noiszewski and Mr Smith have provided their consent to this email being relied upon by the Costs Respondent in its response to the costs application.

This email also forwarded the final settlement offer made by the Costs Applicant, in terms of those earlier proceedings. That settlement offer was contained in the Costs Applicant’s email of 3 July 2018.

It is submitted the advice from the Costs Respondent does not establish that he agitated against the settlement proposal made by the Costs Applicant in those earlier proceedings. If anything the opposite is true.

It is disputed that the ‘act’ of discontinuing the unfair dismissal claims was unreasonable. The settlement proposal required both original applicants to agree to settle all potential claims. There was an ongoing issue concerning compliance with the obligation to negotiate redundancies contained in the Agreement.

It is further submitted that there is no basis to conclude that the discontinuance as opposed to accepting the settlement offer, was in fact the ‘act’ of the Costs Respondent.

Before the Commission is able to exercise its discretion to award costs, it must be established that the relevant acts or omissions were the acts or omissions of the Costs Respondent, that these acts or omissions were also unreasonable and have actually caused loss to the Costs Applicant.

It is submitted a reasonable person will consider not just the financial terms of a proposed settlement but also the terms of the proposed deed generally.

The applicants to the initial unfair dismissal claims were entitled to consider the consequences of the proposed terms of the settlement deed in relation to the issue of whether there had been compliance with the model consultation clause adopted by the Agreement as this concerned consultations prior to any redundancy.

There is no basis to conclude that concerns in relation to settling all disputes in exchange for a payment of two weeks’ wages was either unreasonable or the act or omission of the Costs Respondent.

It is noted that the Costs Applicant criticises the Costs Respondent for not discontinuing the unfair dismissal applications earlier. However, if the reasonableness of failing to discontinue the original applications earlier is to be assessed on the strength of Prosegur’s position, as contained in its witness statements and submissions, then the majority of these were filed before the original conference was convened. The costs application does not distinguish between costs incurred up to that point, and the costs incurred after the Costs Respondent should allegedly have reasonably discontinued the unfair dismissal applications.

The Costs Respondent’s approach to this matter it is argued was conciliatory and realistic. It is submitted the conciliatory approach taken by the Costs Respondent is apparent in the emails sent by him on 4 and 5 July 2018, set out in the applications for costs and from his email advice to the applicants.

The Costs Respondent argues this was also demonstrated when he confirmed in the application for discovery that if it were provided with documents that established that the terminations were a result of a genuine downturn in business, then it would seek to discontinue the respective unfair dismissal claims.

Unreasonable application for production of documents

The documents sought as part of the Costs Respondent’s application for discovery had been referred to by the Costs Applicant’s witnesses as part of its response to the initial unfair dismissal claims. It is contended that these documents were relevant to the question of whether the decision to terminate the applicants constituted a genuine redundancy.

Paragraph 15 of the Costs Applicant’s submissions dated 11 September 2018 outlines in some detail the relevant debate concerning the nature of the alleged redundancies. Apart from anything else, this aspect of the Costs Applicant’s submissions makes it clear that the genuineness or otherwise of the redundancies was very much a live issue.

It is submitted an applicant in an unfair dismissal claim is entitled to seek discovery of documents that have been alluded to as part of a respondent’s defence to a claim. The requested documents have relevance the contention that the redundancies were part of a response to a downturn in business. The documents are legitimate subjects of a discovery request.

An applicant in an unfair dismissal claim cannot be expected to take the respondent at its word in relation to what these documents actually contain.

The Costs Respondent submits it is not unreasonable to seek discovery of documents of this type.

It may be that there are or were issues of confidentially which may have made production difficult or even potentially impossible. However, this is the sort of application that a reasonable representative would be expected to make. In fact, the absence of making the request for these documents may well expose the representative to criticism for not doing so.

The ‘act’ of seeking discovery, while certainly the act of the Costs Respondent was not, it is submitted, unreasonable.

This issue is also relevant for a second reason. It is not reasonable to expect the Costs Respondent to settle the unfair dismissal claims of his clients, in circumstances where Prosegur’s witness statements contend that the redundancy was a genuine response to a business downturn, where he does not actually have before him the documentary basis which is said to support that position.

Jurisdiction to bring costs application

Section 401(1)(c) of the Act provides that a party may make an application for costs in proceedings of this nature, against a paid agent or lawyer, only where the person represented in the original proceedings was required to seek the FWC’s permission, pursuant to section 596 of the Act, for that paid agent or lawyer to represent them.

Where a representative is not a paid agent or representative, then section 596 of the Act has no application, and no permission is necessary for that person to appear. Consequently where a representative is not a paid agent or a lawyer, then pursuant to the mandatory requirements of section 401(1)(c) there is no jurisdiction to make a costs order.

The Costs Respondent is not a lawyer.

Where an individual represents a party in the Commission on a voluntary basis then that individual does not require permission from the Commission to do so.[8] Consequently, a voluntary representative of this type cannot be the subject of a costs application pursuant to section 401 of the Act. It is submitted the Costs Respondent is not a pure volunteer however, this does not mean that he was necessarily a paid agent.

The Costs Respondent was not paid a fee to represent either party to the unfair dismissal applications. Rather, both were members of the association TransportEdge Inc. There is no doubt that the membership fees paid by both entitled them to representation of the sort provided by the Costs Respondent. (Underlining added)

The Costs Respondent argues there is a difference between an entitlement to an industrial service provided by an Industrial Association, as a consequence of paying a membership fee, and an agent who charges a fee to represent a person in a matter before the Commission.

The Act defines a “paid agent” in relation to a “matter before the FWC”. A paid agent is a person who “charges or receives a fee to represent a person in relation to the matter”. The Costs Respondent submits the concept of a paid agent is linked to the existence of a matter before the Commission. The fee must be paid in respect to that specific matter, for the representative to be a paid agent.

It is submitted the definition of paid agent presupposes that the specific matter exists or has been contemplated in order for the representative to be properly described as receiving “a fee to represent a person in relation to the matter”. If the relevant fee was paid prior to the existence of the relevant matter, then the fee cannot have been paid for that purpose.

In addition section 596(4)(c) of the Act provides that a person is taken not to be represented by a lawyer or paid agent if that lawyer or paid agent is a “bargaining representative”.

Both Mr Noiszewski (on 17 January 2017) and Mr Smith (on 18 January 2017) have appointed the Costs Respondent to be their bargaining representative.

The Costs Respondent acknowledges an issue may be whether the status as a bargaining representative simply means that the person is not represented by a paid agent or lawyer, in relation to enterprise bargaining matters. However it is submitted given that section 596(4)(c) is located in Chapter 5, Part 5-1, Division 3 of the Act, which deals with “Conduct of matters before the FWC generally”, there is no need to imply such a reservation into the general words of section 596(4)(c) of the Act.

Consequently, the Costs Respondent submits as the representative is not a paid agent or a lawyer, then pursuant to the mandatory language of section 401(1)(c) of the Act there is no jurisdiction to make a costs order in this matter.

Lastly the Costs Respondent submits the Commission must, as a matter of public interest, consider whether it is appropriate to award costs to a party who discontinues a proceeding prior to the hearing date.

It is accepted by the Costs Respondent that a costs order may be appropriate in some circumstances where a proceeding is discontinued shortly prior to a hearing date. However the circumstances of these proceedings, which involved a genuine contention and attempts to resolve the proceedings, mitigate against the making of a costs order.

A costs award of this nature, it is submitted, could have the effect of discouraging parties from discontinuing proceedings prior to trial. That is, if it is understood that a party may be subject to a costs order if a proceeding is discontinued prior to a hearing, then this may serve as a disincentive generally to parties doing so.

Costs Applicant’s submissions in reply

In reply the Costs Applicant submits the Costs Respondent was not a “bargaining representative” within the meaning of section 596(4)(c) of the Act for the purposes of these proceedings and the Costs Respondent ceased to be a “bargaining representative”, as defined in section 176 of the Act, for each applicant when their employment was terminated because from that point there was no longer a “proposed enterprise agreement” in relation to which the Costs Respondent could act as their bargaining representative. An enterprise agreement (other than a greenfields agreement) can only be made with employees who are employed at the time the agreement is made and who will be covered by the agreement.

The Costs Respondent’s submission that Mr Ferguson or TransportEdge Inc is not a paid agent should be rejected because it is directly inconsistent with the submissions filed on 3 July 2018 seeking permission to represent the applicants in the substantive proceeding and other correspondence from Mr Ferguson during the proceeding which he signed off as “Paid Agent for the Applicant”.

In addition, the Costs Respondent was clearly not a volunteer or acting on a pro bono basis and there is no suggestion that TransportEdge Inc is a registered charity.

The Costs Respondent charged or received a fee from each applicant and, regardless of how that fee is described it does not alter the fact that in exchange for payment of that fee, the applicants were entitled (amongst other things) to representation by the Costs Respondent in their unfair dismissal claims.

The Costs Respondent does not suggest that it is an organisation registered under the

Fair Work (Registered Organisations) Act 2009 and therefore covered by the exemption in s596(4)(b)(i) of the Act.

Whilst the Costs Respondent may have acted on the instructions of the applicants, the Costs Applicant submits it is clear from the material filed that the applicants relied upon the Costs Respondent’s professional expertise and guidance and that the Costs Respondent had a high degree of influence over the way in which the matters were conducted.

Despite disclosing the contents of advice to the applicants the Costs Respondent has produced no evidence of any attempt at any time prior to this to encourage or recommend that the applicants seek to resolve the proceeding on terms acceptable to them which did not involve reinstatement. If there had been a concern about providing a release from claims other than the unfair dismissal claim, the Costs Respondent could have recommended that the applicants make an offer to settle their unfair dismissal claim only, but did not do so. It is submitted this constituted an unreasonable omission and caused costs to be incurred by Prosegur because it deprived Prosegur of the opportunity to resolve the matter at an earlier stage in the proceedings on terms other than reinstatement.

The email of advice to the applicants provided by the Costs Respondent demonstrated he held the view, at least in relation to Mr Smith, that “the chances of reinstatement are remote to say the least” and otherwise considered any remedy that either applicant may receive as extremely limited, yet, it is submitted, he unreasonably failed to take any steps to explore a mutually beneficial settlement with Prosegur or encourage either applicant to seek to resolve the matter on terms which did not involve reinstatement prior to this late stage in the proceeding.

Lastly, the Costs Applicant submits in reply there is no sound basis to characterise the “discovery application” as a rational attempt to resolve the proceedings or a conciliatory approach. To the contrary, there was no reasonable basis to make this request and it constituted an unreasonable act of the Costs Respondent which caused Prosegur to incur costs. There is no requirement for an employer to substantiate its witness evidence with internal documents, particularly in circumstances where there is no contradictory evidence as was the case here.

There is no reason why a costs order cannot be made in circumstances where the proceedings were discontinued before a final hearing and based on the material before the Commission it is submitted that it is appropriate for the Commission to exercise its discretion to do so.

Power to make a costs order

The legislation

The relevant section of the Act is section 401 which is set out below.

“401      Costs orders against lawyers and paid agents
(1)       This section applies if:
(a)       an application for an unfair dismissal remedy has been made under section 394; and
(b)       a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and
(c)       under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A)     The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:
(a)       the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b)       of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC 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 the FWC’s power to order costs under section 611.”

Section 401(1) of the Act says that section 401 applies where an application for an unfair dismissal remedy has been made and a person party to the matter has engaged a lawyer or paid agent (the representative) and under section 596 the party is required to seek the Commission’s permission to be represented by that representative.

Where section 401 of the Act applies section 401(1A) then provides that the Commission has discretion to order the payment of costs against a representative only where two preconditions are met. The Commission must both be satisfied that the representative engaged in an unreasonable act or omission in connection with the conduct or continuation of the matter and that this act or omission caused the other party to incur costs.

Consideration

Was Mr Ferguson a paid agent?

The Cost Respondent submits that Mr Ferguson, the representative in question, was not a paid agent or a lawyer and consequently there is no jurisdiction for the Commission to make a costs order.

I accept it is the case that Mr Ferguson is not a lawyer. I do not accept however that he was involved in a voluntary capacity representing the two applicants. Rather it is not in dispute that the two employees who were the applicants in the respective unfair dismissal remedy applications were members of the association TransportEdge Inc and as such each paid membership fees which entitled them each to representation; which in fact was provided by Mr Ferguson.

Section 12 of the Act defines “paid agent” as meaning an agent who charges or receives a fee to represent a person in a matter.

The fact that the payment arrangement may not have been directly between each applicant and Mr Ferguson does not mean he was not their paid agent. What occurred was that the employees paid a fee to TransportEdge Inc for various services which included representation and this association arranged for Mr Ferguson to represent their members in these matters. It is apparent that at all times Mr Ferguson portrayed himself as their paid agent.

The form F2−Unfair Dismissal Application filed on behalf of Mr Noiszewski was completed by a lawyer who on 7 May 2018 notified the Commission that he was ceasing to act for the Applicant. On 9 May 2018 Mr Ferguson filed a form F53−Notice of Representative Commencing to Act which identified Mr Noiszewski’s new representative as Mr Ferguson, TransportEdge Inc.

The form F2−Unfair Dismissal Application filed on behalf of Mr Smith identifies Mr Ferguson and TransportEdge Inc as the applicant’s representative. That application was signed by Mr Ferguson expressly in the capacity of the applicant’s representative.

Further on 3 July 2018 Mr Ferguson filed submissions for both applications arguing that he should be granted permission by the Commission under section 596 of the Act to represent both applicants. On the first page of these submissions its states that this submission is prepared by “Glenn Ferguson Paid Agent…”

The final paragraph of each submission reads as follows:

“It is submitted that in consideration of all the factors to be taken into account in determining the question of the Applicant be able to be represented by a paid agent have been adequately explained hereinbefore and as such the Applicant respectfully requests that leave be granted for the Applicant to be represented by a paid agent.” (sic)

I am satisfied then that Mr Ferguson was the paid agent of Mr Noiszewski and Mr Smith and he was their representative as that term is used in section 401(1)(b) of the Act and Mr Ferguson under section 596 required the Commission’s permission to represent the employee applicants.

Unreasonable acts or omissions?

The Cost Applicant has identified three instances of what it says were unreasonable acts or omissions by Mr Ferguson which caused the Costs Applicant to incur costs.

An unreasonable last-minute discontinuance?

Both applications were discontinued on 13 July 2018. Relevant dates to give this context include the following,

· 15 June 2018, the Costs Applicant filed an outline of submissions and a number of documents and its witness statements (4).

· 3,4,5 and 6 July 2018, Costs Applicant and Mr Ferguson swap offer and counter offer email correspondence regarding the financial settlement and the scope of releases for settlement.

· 11 July 2018, Deputy President Binet convened a joint conciliation conference.

· 12 and 13 July 2018, Costs Applicant makes an improved offer and emails are swapped with Mr Ferguson advising of Mr Noiszewski’s and Mr Smith’s positions.

· 13 July 2018, Costs Applicant was advised by Mr Ferguson that both Mr Noiszewski and Mr Smith would discontinue their applications. Notices of discontinuance were filed that afternoon.

· 19 July 2018, Directions require the parties to jointly file an Agreed Statement of Facts.

· 24 July 2018, date of Hearing/Determinative Conference to be held.

There is no evidence to indicate that during this period, and particularly during the period when potential settlements were being canvassed between the parties immediately prior to the matters being discontinued, that Mr Ferguson was acting other than in accordance with Mr Noiszewski’s and Mr Smith’s instructions.

There is no evidence before the Commission which explains why Mr Noiszewski and Mr Smith instructed Mr Ferguson that they wished to discontinue their applications when they did.

The timing of the filing of the discontinuances was six days prior to the parties having to file an Agreed Statement of Facts and eleven days before the date of the Hearing/Determinative Conference.

It is not at all apparent how Mr Ferguson is responsible for the decision of Mr Noiszewski and Mr Smith to discontinue their applications when they did. The limited evidence does not satisfy me that what the Costs Applicant complains of, “a last minute discontinuance”, was an act or omission of Mr Ferguson rather than of Mr Noiszewski or Mr Smith.

Separately, whilst I accept that the Costs Applicant potentially could have incurred less cost if Mr Noiszewski and Mr Smith had discontinued their application at an earlier time the act of discontinuance itself self-evidently saved the Costs Applicant incurring the cost of paying the settlement amounts that they had offered the day before.

I note that the Costs Applicant has not submitted, under section 401(1A)(a) of the Act, that Mr Ferguson encouraged either Mr Noiszewski or Mr Smith to start, or to continue their matter when it should have been reasonably apparent that there was no reasonable prospect of success.

The discontinuance of these applications in all the circumstances was not an unreasonable act or omission by Mr Ferguson that caused the Costs Applicant to incur costs.

An unreasonable manner of conducting settlement negotiations?

The Costs Applicant complains that it was not until 4 July 2018 that Mr Ferguson advised that Mr Noiszewski and Mr Smith would consider a financial settlement of their applications which did not involve reinstatement. The Costs Applicant submits that a reasonable representative would have formed the view by 15 June 2018, when Prosegur’s materials were filed, that the Commission would be unlikely to order reinstatement in the circumstances and that any compensation would be minor.

It is clear on the materials before the Commission that on the day each of the employees were dismissed there was no consultation at all. Each of the employees were advised at the end of their shift that their position was redundant and was provided with a letter to that effect which included their pay-out calculations and was then escorted from Prosegur’s property.

When the respective form F8A−Employer Responses were filed by the Costs Applicant to the substantive applications, which had been made in March and April 2018, no reliance was made on the jurisdictional objection in section 389 of the Act that the dismissals were cases of genuine redundancy.

The Costs Applicant’s final position on these applications however was not documented until their submissions and witness statements were filed on 15 June 2018. In these materials the Costs Applicant’s position had changed to then expressly rely upon the jurisdictional objection in section 389 of the Act arguing that both dismissals were cases of genuine redundancy.

It is apparent that Mr Ferguson held doubts as to whether what occurred were in fact genuine redundancies and on 9 July 2018 he applied for orders to produce documents which involved time cards and the records of the total hours provided to sub-contractors, Field Officers and supervisory staff who had performed particular duties. The reasons the documents were sought were explained to include confirming the genuine operational reasons asserted by Prosegur as the reason for the dismissals.

The Costs Applicant’s submission that Mr Ferguson should, as of 15 June 2018, have understood reinstatement was not possible because of the particular reasons for the dismissals needs to be considered in the context of the Costs Applicant having changed its position in response to these applications. The Costs Applicant’s position had not always been that the dismissals were genuine redundancies; this position was one it adopted some time after it had filed its original responses to the applications and was only fully documented in 15 June 2018.

There was also a dispute as to whether Prosegur had satisfied any obligation it had to consult with Mr Noiszewski and Mr Smith at the time of their respective dismissals and separately whether Prosegur, being a national company with branches in all States and Territories and a large number of employees, had considered all redeployment possibilities including any outside Western Australia. I note the obligation is not on the employees to suggest possible redeployments to the employer. In any determinative proceeding the employer will bear the evidentiary onus with respect to redeployment and section 389(2) of the Act.

Consequently given the above context and matters in dispute it was reasonable for Mr Ferguson to have doubts as to whether what occurred in fact satisfied the requirements of section 389 of the Act.

If either of the Costs Respondent’s arguments, that Prosegur had failed to comply with the Agreement’s obligation regarding consultation or that redeployment was reasonable, were successful in a determinative proceeding not only would the Costs Applicant’s jurisdictional objection have failed but there was a real possibility the Commission would continue on to decide that the dismissals were unfair. Reinstatement therefore remained one of the possible outcomes if the applications had proceeded to be determined by the Commission. It was therefore not unreasonable in these circumstances for Mr Ferguson to still view reinstatement as a reasonable claim in settlement discussions for some time after 15 June 2018.

In any event even if continuing to seek reinstatement in the settlement discussions was unreasonable the limited evidence does not satisfy me that what the Costs Applicant complains of was an act or omission of Mr Ferguson rather than of Mr Noiszewski or Mr Smith. Consequently the Costs Applicant has not satisfied me that the conduct of the settlement negotiations about which they complain, in particular the timing of Mr Noiszewski and Mr Smith deciding to no longer pursue reinstatement as part of a possible settlement, was an act or omission of Mr Ferguson.

The conduct of the settlement negotiations in all the circumstances was not an unreasonable act or omission nor in my view was it Mr Ferguson’s act or omission that caused the Costs Applicant to incur costs.

An unreasonable application for the production of documents?

The Costs Applicant submits that the documents sought by the Costs Respondent’s application for an order to produce documents, which was filed by Mr Ferguson on 9 July 2018, was made without any proper basis.

It is submitted making this application was an unreasonable act as the documents sought had no or minimal probative value, it was based on the belief that the Costs Applicant would have to produce documentary evidence to corroborate its witness evidence which was misguided given its witness evidence was uncontested and finally the Costs Applicant submits the application was a fishing expedition in order to access confidential information for a collateral purpose.

Prior to making this application for an order to produce documents to the Commission Mr Ferguson had written to the Costs Applicant’s representative and requested that they voluntarily provide the documents however this request was refused.

Mr Ferguson’s application that the Commission issue an order requiring the Costs Applicant to produce particular documents was not the subject of any proceedings nor was his application determined by Deputy President Binet prior to the substantive applications being discontinued four days later on 13 July 2018.

With respect to Mr Ferguson making the application to the Commission for the issuance of an order to produce documents I accept that this was an act of Mr Ferguson which apparently caused some costs to be incurred by the Costs Applicant.

I accept that at the time of making this application for an order to produce documents the jurisdictional objection raised by the Costs Applicant, that both of the dismissals were cases of genuine redundancy within the meaning of section 389 of the Act, was disputed by Mr Noiszewski and Mr Smith.

Again it is relevant in my view that the Costs Applicant had not initially in its response to the applications raised the objection that the dismissals were both cases of genuine redundancy. However as the Costs Applicant submits this objection was later adopted by them and this had been made plain in their materials filed on 15 June 2018, well prior to Mr Ferguson making the application for an order to produce documents.

However, as was considered above there were good reasons for Mr Ferguson to doubt whether the dismissals where in fact cases of genuine redundancy as the Costs Applicant had argued in its filed materials. There were arguments that Prosegur had not met its consultation obligations under the Agreement and separately that redeployment of the employees was reasonable in all the circumstances.

As is common in such cases the employer, Prosegur, had complete knowledge of all the relevant business circumstances relating to their decision to dismiss the two employees. The two employees who were dismissed and their representative Mr Ferguson however could not be sure that their knowledge of the business circumstances relating to the employees’ dismissals was equally complete. They had some knowledge themselves of the circumstances of the business and had the information filed by the Costs Applicant but they could not be certain that together this was a complete set of the relevant facts explaining the true business circumstances that led to their dismissals.

The documents sought, if provided, would have informed Mr Ferguson and the employees of the trend in hours worked each week over 2018 for employees of Prosegur engaged in the same duties as Mr Noiszewski and Mr Smith, for subcontractors doing similar duties, for other classifications of employees who may have done these duties at times and for supervisors who also may have done these duties on occasions. Potentially these documents may have confirmed or refuted the evidence of some of Prosegur’s witnesses as to the business circumstances that led to the employees’ dismissal.

In these proceedings the Commission as currently constituted has not had the benefit that a presiding Member would have of considering the competing fulsome submissions both for and against the issuance of a particular order to produce documents which one party has applied for and which is opposed. If this had occurred at first instance Deputy President Binet could have dismissed the application or as is often the case made changes to the requirements to produce in consideration of some of the objections of the opposing party or could have granted the application.

The question for the Commission in considering this application for costs is not the same as the question a presiding Member is required to determine when considering whether an application for an order to produce documents should be granted. In the context of this application for costs to be ordered the question is only whether the act of Mr Ferguson in applying for the order to produce documents was unreasonable. At the time of Mr Ferguson applying for an order to produce documents, as has been explained previously, there were arguable points against the Costs Applicant’s objection, that the dismissals were each cases of genuine redundancy. In all the circumstances then I do not believe simply making this application for an order to produce the particular documents was unreasonable.

Mr Ferguson making the application for an order to produce documents on 9 July 2008 was not an unreasonable act.

Conclusion

I do not agree that any of the three instances the Costs Applicant relies upon amount to Mr Ferguson causing Prosegur to incur costs because of his unreasonable act or omission in connection with the conduct of the substantive matters.

Consequently the two applications for an order for costs against Mr Ferguson are hereby dismissed.

Appearances:

S Caylock of Rigby Cooke Lawyers for the Costs Applicant.
G Maclean of Maclean Legal for the Costs Respondent.

Hearing details:

2018.
Perth:
October 9.

[1] Transcript at PN19.

[2] See Prosegur’s Outline of Submissions filed by Rigby Cook lawyers, signed and dated 15 June 2018.

[3] Costs Respondent’s Outline of Submissions, Attachment 1.

[4] Each of the above exchanges described are not contested and are attached to the respective applications for costs.

[5] Goffett v Recruitment National Pty Ltd [2009] AIRCFB 626 at [35] and [47].

[6] Khammaneechan v Nanakhon Pty Ltd T/A Banana Tree Café[2011] FWA 651 at [23].

[7] Costs Respondnet’s Outline of Submissions, Attachment 1.

[8] See Cooper v Brisbane Bus Lines[2011] FWA 1400 at [13].

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