Purvinas v Wyse

Case [2024] FCA 1122

FEDERAL COURT OF AUSTRALIA

Purvinas v Wyse [2024] FCA 1122

File number(s): NSD 203 of 2024
Judgment of: RAPER J
Date of judgment: 25 September 2024
Catchwords: PRACTICE AND PRCOEDURE – application discontinued – respondents apply for their costs – whether proceedings instituted vexatiously within the meaning of s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) – purpose of instituting proceedings – ability to rely on subsequent conduct to inform findings regarding motive when instituting proceedings – costs awarded
Legislation:

Fair Work Act 2009 (Cth) s 570(2)(a)

Fair Work (Registered Organisations) Act 2009 (Cth) ss 5(1), 5(3), 164, 164(4), 164A(4), 164(3), 329, 329(1)

Legal Profession Uniform Law Application Act 2014 (NSW) s 4

Legal Profession Uniform Law Application Act 2014 (Vic) Sch 1
Cases cited:

Church v Eastern Health [2014] FWCFB 810; 240 IR 377

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Heidt v Chrysler Australia Ltd (1976) 26 FLR 257

Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; 198 FCR 153

Nilsen v Loyal Orange Trust (1997) 76 IR 180

Packer v Meagher (1984) 3 NSWLR 486

Ragata Development Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175

Sabapathy v Jetstar Airways (No 2) [2021] FCAFC 68

Simpson v Malherbe (1865) 4 Giff 707
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 139
Date of hearing: 31 July and 8 August 2024
Counsel for the Applicant: Mr D Nagle
Counsel for the First, Second, Fourth, Fifth, Seventh, 12th–18th Respondents Ms L Doust
Solicitor for the First, Second, Fourth, Fifth, Seventh, 12th–18th Respondents: AEN Legal

ORDERS

NSD 203 of 2024
BETWEEN:

STEPHEN PURVINAS

Applicant
AND:

RODNEY WYSE

First Respondent

PETER GILL

Second Respondent

WAYNE DERNDORFER (and others named in the Schedule)

Fourth Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), the applicant be ordered to pay the respondents’ costs on an indemnity basis, to be assessed on a lump sum basis in an amount to be determined by a Registrar of the Court.

2.The Registrar be directed pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), to determine the quantum of the lump sum for costs payable pursuant to order 1 above, in such manner as he or she deems fit, including, if thought appropriate, on the papers.

3.The Registrar be directed pursuant to r 1.37 of the Rules, at the conclusion of the quantification process, to order that the applicant is to pay whatever sum has been quantified pursuant to order 2 above within 28 days from the date of the Registrar’s order.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RAPER J:

  1. The issue for determination is whether certain of the Federal Executive members of the Australian…

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AGLC
Purvinas v Wyse [2024] FCA 1122
Case
[2024] FCA 1122
Decision Date

CaseChat Overview and Summary

In the matter of Purvinas v Wyse, the applicant, Mr. Steve Purvinas, brought proceedings against the respondents, Rodney Wyse and others. The dispute arose from the applicant's concerns about the validity and implications of a resolution passed by the respondents' Federal Executive. The application was subsequently discontinued, and the respondents applied for their costs, arguing that the proceedings were brought vexatiously within the meaning of section 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth). The court had to determine whether the applicant's predominant purpose in instituting the proceedings was to harass, annoy, or embarrass the respondents or to obtain a collateral advantage.

The legal issues that the court had to decide included whether the applicant's prior threats and admissions could be used to establish his motive for instituting the proceedings, and whether his subsequent conduct could be considered to inform the court's findings regarding his motive. The court examined the evidence provided by both parties and the relevant findings within the identified temporal periods. The court also considered the relief sought by the applicant and the credibility of the witnesses involved.

After evaluating the evidence, the court found that the applicant had instituted the proceedings vexatiously. The court determined that the applicant had a history of threatening or instituting proceedings for collateral or vexatious purposes, which provided a relevant backdrop to understanding his true motivation. The court concluded that the applicant's predominant purpose was to harass, annoy, or embarrass the respondents, and therefore, the applicant was liable for the respondents' costs on an indemnity basis. The court ordered that the costs should be assessed by a Registrar of the Court on a lump sum basis in accordance with the Court’s Costs Practice Note (GPN-COSTS). The court also directed the Registrar to determine the quantum of the lump sum for costs payable and to order the applicant to pay the sum within 28 days from the date of the Registrar’s order.

Orders

Orders of the court

1. Pursuant to s 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), the applicant be ordered to pay the respondents’ costs on an indemnity basis, to be assessed on a lump sum basis in an amount to be determined by a Registrar of the Court.

2. The Registrar be directed pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), to determine the quantum of the lump sum for costs payable pursuant to order 1 above, in such manner as he or she deems fit, including, if thought appropriate, on the papers.

3. The Registrar be directed pursuant to r 1.37 of the Rules, at the conclusion of the quantification process, to order that the applicant is to pay whatever sum has been quantified pursuant to order 2 above within 28 days from the date of the Registrar’s order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ultimately, I did not find him a credible witness and I was only prepared to find in his favour where the contemporaneous documents (not of his own making) accorded with his account. For the reasons expressed below, it will become apparent that he was a warrior that flexed his muscle in many Machiavellian ways, including by nib of the pen or keyboard. The costs applicants’ evidence The costs applicants relied upon specified paragraphs and the annexures to the affidavits of Rodney Wyse and Peter Gill. It also relied on the evidence of Mr Paul Staddon. Mr Wyse, current President of the Federal Executive, gave evidence and was cross-examined. He is a licensed aircraft engineer. He did not always answer questions directly but did ultimately make concessions when required. According to his evidence, which I accept, whilst the disputed resolution was crafted with a degree of infelicity, its intention was to address concerns that the Federal Executive had regarding Mr Purvinas, acting without the knowledge or imprimatur of the Federal Executive. It appeared that Mr Wyse wanted Mr Purvinas to act in a manner consistent with his obligations under r 27. He sought thereafter to address Mr Purvinas’ concerns by the 1 March 2024 proposed variation of the disputed resolution. His response, which was compelling, was that Mr Purvinas could have discharged his reporting obligations under r 27 by calling Mr Wyse or Mr Gill and could have explained the problems he foresaw with the motion. Mr Staddon was a credible witness. He had had a long standing, professional relationship with Mr Purvinas. He had sought Mr Purvinas out to support him. He appeared to have been genuinely concerned about Mr Purvinas’ mental health when he spoke to him. His evidence remained unshaken under cross-examination.Summary of competing positions According to the costs applicants, the Court should be satisfied that Mr Purvinas has brought the suit in order to harass, annoy or embarrass them or otherwise to obtain a collateral advantage. This is said to be evident by reference to three distinct temporal periods: First, Mr Purvinas made prior threats of bringing the proceedings for collateral purposes and had made certain admissions to Mr Wyse and Mr Gill prior to instituting the proceedings. Secondly, the period just prior to and after the proposed motion was circulated and the commencement of the proceedings. Thirdly, the subsequent conduct of Mr Purvinas. This provides a useful frame of reference to consider the evidence, which will be attended to below. Mr Purvinas submits that the relevant test for determining whether he may be liable for costs is whether his predominant purpose for instituting the proceedings was to harass or intimidate or otherwise to obtain a collateral advantage. Mr Purvinas submits that the costs applicants have not cleared that high bar; no collateral advantage has been established by the respondents. This was said to be the case because Mr Purvinas purported to have “had a very deep concern about the way that his role as the Federal Secretary was to operate in the event that this disputed resolution was to stand and which he took issue with”. Mr Purvinas submitted that this concern was borne out by the relief sought in the application. The powers vested in the Federal Secretary, by virtue of r 27, were said to be impermissibly interfered with by the disputed resolution, which it is said was an ambiguous direction; referring to the evidence of Mr Wyse who said that Mr Purvinas could undertake calls as long as he told them later.

Decision

Reasons for decision

The costs applicants’ say that by finding that the proceedings were brought vexatiously, it follows that costs ought to be awarded on an indemnity basis. No submission was made by Mr Purvinas as why, if the costs applicants were successful in their application, indemnity costs ought not be awarded in this case. For all of the reasons stated above, it is my view that costs ought to be awarded on an indemnity basis.Conclusion Accordingly, I find and make orders that Mr Purvinas must pay the respondents’ costs of the proceedings on an indemnity basis and where those costs should be assessed by a Registrar of the Court on a lump sum basis in accordance with the Court’s Costs Practice Note (GPN-COSTS). The making of such an order on a lump sum basis is the Court’s preference, wherever practicable and appropriate to do so and where no formal application is required.

Ratio Decidendi

Legal Principle Established

Mr Purvinas made submissions regarding the circumstances proximate to his discontinuing of the proceedings. It was submitted that those events all occurred in a short period of time. Further, once the disputed resolution was properly rescinded, and the charges laid by Mr Baldacchino were withdrawn, Mr Purvinas then promptly offered to withdraw the proceeding with no order as to costs, and upon that being rejected, the matter was brought before the Court as quickly as practicable.Consideration For the following reasons, the costs applicants have overcome the high bar, and established that Mr Purvinas instituted the proceedings vexatiously. The costs applicants’ thesis is borne out by a review of evidence and the relevant findings in the three temporal periods identified above.Mr Purvinas’ prior history of threatening proceedings and bringing of proceedings A consideration of this pre-history provides a relevant backdrop to the identification of what Mr Purvinas’ true motivation was, when he instituted the proceedings on 26 February 2024. The costs applicants rely on a number of events prior to the instituting of the current proceeding as being illustrative of Mr Purvinas’ propensity to use the threat of, or fact of his instituting of proceedings for collateral or vexatious purposes: First, his contesting of validity of the Federal Executive’s motion regarding the creation of a Qantas Super Merger Committee in November 2023; secondly, conversations he had with Mr Gill and Mr Wyse and thirdly, his instituting of the bullying proceedings in December 2023 and, in particular, a conversation he had with Mr Stratton, on 29 November 2023. On or around 13 November 2023, the Federal Executive established an Executive Committee to represent the Union to promote and further the interests of its members in the proposed Qantas Super Merger. On that date, Mr Purvinas wrote to Mr Wyse threatening to bring urgent Federal Court action for interlocutory relief regarding that motion on the basis that he said it was unlawful, saying that “he only had the power under the Rules to “represent” the Union, unless he delegated that power to someone. The 13 November 2023 letter is extracted in full (because of its significance first to this allegation, but also how it contrasts with Mr Purvinas’ later conduct, about which I will return):Dear Rod,On 13 November 2023, a majority of the ALAEA Federal Executive passed a motion in the following terms:Approval is given for an Executive Committee made up of Executive Members Rod Wyse, Steve Purvinas, Mark Gant, Matt Rea and Eddy Azzopardi to represent the Association to promote and further the interest of our members in all Matters related to the Proposed Qantas Super Merger. Authority is also given for Rod Wyse to Head and Lead the Committee.I have previously expressed my concerns about the validity of this motion.As you are aware, although the Executive is the supreme governing body of the Union and can direct the Association's policy in matters affecting members per r.12, it does not itself have the power to represent the Association, including in negotiations. That power is vested specifically, and solely, in the Federal Secretary: r.27(n).To the extent that the motion purports to delegate a power that the Executive does not have, it is invalid. Actions taken pursuant to it will not be authorised by the rules; any action of the Committee as a whole (or any individual purporting to act on its behalf) will be outside power.The motion also has other deficiencies, including that it is not at all apparent what is meant by 'head and lead' and what powers have been purportedly vested in you.The upcoming proposal to sell Qantas Super is a matter of great significance to Association members. I am greatly concerned that if decisions are taken, and representations made to Qantas or other parties, in line with this motion that they will not have been made in accordance with the rules of the Association. I do not have concerns with the issue being dealt with by an executive committee per se, but it needs to be correctly constituted.This is too serious a matter to risk acting outside of power. Additionally, I consider it my duty as a federal office holder to ensure that the Association is acting consistently with its rules and underlying statutory obligations.