Riccardo Zornada v St John Ambulance Australia (Western Australia) Inc

[2013] FWC 867

[2013] FWC 867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Riccardo Zornada
v
St John Ambulance Australia (Western Australia) Inc
(U2012/12994)

DEPUTY PRESIDENT MCCARTHY PERTH, 8 FEBRUARY 2013

Application for security costs.

Background

[1] Mr Riccardo Zornada (the Applicant) lodged an application for unfair dismissal remedy on 5 September 2012. The Applicant claims that he was unfairly dismissed from his employment by St John Ambulance Australia (Western Australia ) Inc ( the Respondent).

[2] The Respondent lodged an Objection asserting that the claim was brought out of time and that it had no reasonable prospect of success. The Respondent also lodged an application for Security for Payment of Costs. I listed the application for Security for Payment of Costs to be dealt with first and it is that application that this Decision deals with.

[3] The Fair Work Act 2009 (the FW Act) provides in s.404 that:

“The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part [Part 3-2 Unfair Dismissal].”

The Fair Work Australia Rules 2010 (the Rules) provide that:

“FWA may, on application, make an order directing a person to furnish security for the payment of costs in respect of a matter or part of a matter arising under Part 3-2 of the Act. [Rule 16.1]”

The grounds that the Respondent stated in the application lodged essentially were that:

● It is reasonably apparent the Applicant’s application has no reasonable prospects of success.

● On that basis, it is reasonably likely, should the application proceed to a substantive hearing, the application will fail and the Respondent may be entitled to apply for and be awarded costs.

Consideration

[4] The general rule in the FW Act is that parties bear their own costs [s.611(1)]. The only exceptions to that rule are where the Fair Work Commission (FW Commission) is satisfied that an application was made vexatiously, or without reasonable cause, or that it should have been reasonably apparent to the person costs are being sought against that the application or response to it had no reasonable prospect of success [s.611(2)]. The power to award costs can only be made on application after the matter has been determined or it has been discontinued [s.402].

[5] The FW Act provides no requirements or limitations on the considerations for any Order for the security for costs. Clearly a decision to order or not order security for payment of costs is a discretionary judgment.  1

[6] Any guidance for the exercising of that discretion is provided by the objects of Part 3-2 which requires that the discretion is applied within a framework that is intended to balance the needs of business in a manner that is quick and informal and the needs of the Applicant and through ensuring a “fair go all round” is accorded to both the employer and the employee concerned [s.381].

[7] I am also required to perform the function in a manner that “a) is fair and just; and (b) is quick, informal and avoids unnecessary technicalities; and (c) is open and transparent; and (d) promotes harmonious and cooperative workplace relations [s.577(a)].” I must also take into account equity, good conscience and the merits of the matter in performing my functions and exercising any powers.

[8] It seems to me that the needs of the employee are primarily whether they can pursue their application. If an Order that would likely cause the application to be discontinued because of a lack of means to comply an Order would not properly recognise an employee’s needs. On the other hand if the refusal to issue an Order had the effect of causing an employer to not defend an application they believed to be vexatious, or made without reasonable cause, or because they believed it had no reasonable prospect of success because of the costs involved, this would not properly recognise the needs of the employer.

[9] Much of the time in these proceedings involved submissions about whether or not the application had a reasonable prospect of success. In this matter I consider it was premature for much consideration of that issue.  2 Whether the application has a reasonable prospect of success requires a consideration of the evidence likely to be able to be presented. I do not regard those considerations to be consistent with the object of quickness and informality for matters of this nature.

[10] Here the Applicant is not impecunious and it did not appear to me that any Order would have any effect on him pursuing his application. The Applicant is represented by United Voice.

[11] The exposure by the Respondent to costs is likely to be incurred in defending the application are substantial. The Respondent was represented by legal practitioners. The Respondent is entitled to minimise the exposure to costs and to safeguard their right to seek to recover costs.

[12] In balancing the needs of the Applicant and the needs of the Respondent I am satisfied that the balance weighs in favour of the Respondent in obtaining some security. I also consider an Order would be consistent with the requirement for there to be "a fair go all round". An Order for the security of costs will issue as requested with a requirement for security to the amount of $25,000 to be provided.

DEPUTY PRESIDENT

Appearances:

C Allen for the Applicant

K Reid for the Respondent

Hearing details:

2012

Perth:

December 14

Final written submissions:

Applicant 19 December 2012

Respondent 21 December 2012

 1   P S Chelleram & Co Ltd v China Ocean Shipping Co and Another[1991] HCA at [36].

 2   Nina v St George Bank [2012] FCA 905 at [39] per Griffiths J.

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