RePipe Pty Ltd v Anthony Dunne
[2015] FWCFB 6787
•6 OCTOBER 2015
| [2015] FWCFB 6787 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Anthony Dunne
(C2015/5877)
VICE PRESIDENT WATSON | MELBOURNE, 6 OCTOBER 2015 |
Appeal against decision [2015] FWC 5293 of Senior Deputy President O’Callaghan at Adelaide on 11 August 2015 in matter number U2014/1953 – Permission to appeal costs application – Whether grounds of appeal attract the public interest – Permission to appeal not granted – Fair Work Act 2009 – ss. 394, 400, 400A, 604 and 611.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Senior Deputy President O’Callaghan handed down on 11 August 2015. The decision of the Senior Deputy President rejected a costs application made by RePipe Pty Ltd (RePipe) following the dismissal of an unfair dismissal application made by Anthony Dunne under s.394 of the Fair Work Act 2009 (the Act).
[2] At the hearing of the application on 30 September 2015, Mr D. Howlett of counsel appeared for RePipe and Mr A. Dunne appeared on his own behalf.
Background
[3] Following the Senior Deputy President’s dismissal of Mr Dunne’s unfair dismissal application on 27 May 2015, RePipe made an application for costs on the basis that Mr Dunne’s unreasonable acts or omissions both before and after he made the application caused it substantial and unnecessary additional costs.
[4] The Senior Deputy President considered the submissions made by RePipe. His Honour’s conclusion is expressed in the following passage from his decision:
“[18] Having considered the overall circumstances of the termination of Mr Dunne’s dismissal, I am not persuaded, on balance, that his initiation of the application, or his continued pursuit of it, should be regarded as unreasonable acts. The application was not obviously untenable or manifestly groundless. My reservations about the termination of employment process applied to him must be weighed against my findings about his untruthfulness.
[19] Accordingly, I am not satisfied that the prerequisite requirements for consideration of an order for costs have been made out. In any event, the circumstances of this matter mitigate against the making of such an order. The Repipe costs application is dismissed on this basis.”
Grounds of Appeal
[5] RePipe contends that the Senior Deputy President erred in law and in fact. It advances the following grounds of appeal:
- Errors of law were made about the jurisdiction requirements of ss. 400A and 611 of the Act and also in the application of these provisions to the costs application;
- Errors of fact were made in finding that RePipe’s “termination of employment process” suffered from “procedural deficiencies”;
- Errors of law were made in failing to point to a finding that RePipe’s “termination of employment process” suffered from “procedural deficiencies”;
- That adequate reasoning was not provided for the costs decision;
- That irrelevant matters were considered and given some weight and relevance;
- That grounds of RePipe’s costs application were not properly considered; and
- That the decision is unreasonable and unjust.
Permission to Appeal
[6] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss. 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[7] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’ 1. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[8] The test for determining the public interest has been described as follows: 2
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] 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, it seems to us that none of those elements is present in this case.”
[9] It is also important to note that the decision under appeal is of a discretionary nature. Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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.”
Conclusion
[10] For the most part, the grounds of appeal and submissions advanced by Repipe repeat the submissions made before His Honour and seek an alternative conclusion. Criticisms are also made of an alleged failure to provide sufficient reasons and to adequately consider the arguments put in the matter at first instance.
[11] We have considered his Honour’s decision. In our view, it deals with the matters raised in an appropriate manner and applies the correct tests for a costs application under the Act. It is well established that important public policy considerations underlie the duty to provide adequate reasons. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps that lead to a particular result. However the reasons for the decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings. 5
[12] The conclusions reached by His Honour involve an assessment of the circumstances and a judgment made both in relation to the jurisdictional prerequisites and the appropriateness of an order in those circumstances. In our view, His Honour addressed the correct questions and gave adequate reasons for his conclusions.
[13] Further, we are not persuaded that the conclusions reached are in error. It is not for us to re-determine the matter based on our own analysis. The discretionary nature of the decision confines the scope for challenge to the manner in which the discretion was exercised and contentions that the result is plainly unjust. In our view, no error in the exercise of that discretion, or the conclusion reached, has been made out.
[14] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr D. Howlett for RePipe Pty Ltd.
Mr A. Dunne on his own behalf.
Hearing details:
2015.
Melbourne – Video Link to Perth.
30 September.
Final written submissions:
RePipe Pty Ltd on 21 September 2015.
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
5 Barach v University of New South Wales[2010] FWAFB 3307 at [16].
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