Robin Hansen v Calvary Health Care Adelaide Limited

[2016] FWC 7718

[2016] FWC 7718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robin Hansen
v
Calvary Health Care Adelaide Limited
(U2015/16189)

COMMISSIONER PLATT ADELAIDE, 24 OCTOBER 2016

Application for costs pursuant to ss. 611 and 400A of the Fair Work Act – costs awarded.

[1] This is an application by Calvary Health Care Adelaide Limited (Calvary) seeking an order for costs against Ms Robin Hansen pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Act). The application is made in the context of an earlier application by Ms Hansen, claiming a remedy for an alleged unfair dismissal pursuant to s.394 of the Act, and the dismissal of that application pursuant to s.399A on 31 May 2016.

[2] The s.399A application made by Calvary was, for the most part, based upon the fact that Ms Hansen had breached an order, made by consent, that she not contact or communicate with persons who were to give evidence in the matter.

[3] In conjunction with the s.399A application, Calvary also submitted a costs application. In the s.399A decision the Commission advised the parties as follows in relation to the costs application:

“I note that Calvary have applied for costs in this matter however, as this application was not fully argued before me, I have not determined that matter. In the event that Calvary wishes to pursue its application and advises the Commission within 28 days of the date of this decision, I will relist the matter for directions and further hearing.”

[3] Ms Hansen subsequently appealed the Decision, and Calvary asked that their costs application be stayed pending the outcome of the appeal.

[4] The appeal was not successful and on 4 August 2016, directions were issued to the parties, providing for the filing of submissions and evidence in support of their respective positions in relation to the costs application. Those directions stated that, absent any factual dispute, the matter would be determined on the papers. The parties have now filed their material and there does not appear to be a dispute on the facts that directly concern this costs application.

[5] Accordingly, it is now appropriate to determine whether the costs application should be granted based upon that material.

Events surrounding the application

[6] An unfair dismissal application made pursuant to s.394 of the Act, was lodged by Ms Hansen on 24 November 2015 in relation to the termination of her employment with Calvary on 3 November 2015.

[7] The matter was allocated to me on 14 January 2016 and listed for directions by teleconference on 28 January 2016.

[8] At the directions conference, Ms Hansen was represented by Mr McMahon from the Australian Nursing and Midwifery Federation, and Calvary was represented by Mr Walsh of DW Fox Tucker. During this conference, the representatives sought the making of a consent order (Order), restricting Ms Hansen from contacting two persons whom I understood were potential witnesses in the matter.

[9] The Order stated:

“A. Until further order, pursuant to section 589 of the Fair Work Act 2009 the Applicant is restrained from in any way:

1. communicating, whether orally or in writing, directly or indirectly, with Samantha Lee Barber and/or DL 1; and/or

2. contacting or attempting to contact whether orally or in writing, directly or indirectly, Samantha Lee Barber and/or DL; and/or

3. attending at, or stopping in public areas in the immediate vicinity of, the personal residences of Samantha Lee Barber and/or DL.

B. Order A above shall not prevent the Applicant’s legal representative(s) from communicating with Samantha Lee Barber and/or DL in connection with the proper conduct of the Proceedings on behalf of the Applicant.

C. This order will operate on and from 28 January 2016.”

[10] On 7 April 2016, as a result of an alleged breach of this Order by Ms Hansen, Calvary made an application pursuant to s.399A of the Act, seeking that the Commission make orders:

• dismissing Ms Hansen’s unfair dismissal; and
• awarding costs to the Respondent.

[11] In its application, Calvary stated that:

• between 17 February 2016 and 27 March 2016, Ms Hansen drove past the residence of Ms Barber on at least 18 occasions and shouted out loudly, and in some cases using expletives which were heard by Ms Barber;



• on 27 and 28 March 2016, Ms Hansen drove past the residence of Ms Barber and yelled, this conduct was recorded by a surveillance operative; and



• on 29 March 2016 and 6 April 2016, Ms Hansen drove past the residence of Ms Barber on at least 18 occasions and shouted out loudly, and in some cases using expletives which were heard by Ms Barber.

[12] This application was accompanied by the Affidavit of Mr Walsh and attached CCTV footage.

[13] On 11 April 2016, a Statutory Declaration of Mr Paul Philip Hocking was filed.

[14] On 13 April 2016, an Affidavit of Ms Samantha Barber along with CCTV was filed.

[15] The s.399A application was listed for hearing on 15 and 27 April 2016.

The section 399A Decision

[16] In my decision I made several findings of fact in respect to Ms Hansen’s conduct following the making of the Order:

“[50] I reject Ms Hansen’s contention that she might have been speaking to herself, singing, or that she had spilled a drink in her car. These explanations were presented in a belligerent manner and are implausible when considering the frequency of the conduct and the distance between the vehicle and Ms Barber’s residence. I find that Ms Hansen drove past Ms Barber’s residence on over 30 separate occasions since the Order was granted and deliberately yelled obscenities and/or made threats towards Ms Barber.

[51] In respect of the events of 12 April 2016, where Ms Hansen is accused of driving past Ms Barber’s residence playing the song “I won’t back down.” Ms Hansen accepted that she had a Tom Petty and the Heartbreakers disk in her car CD player but denies repeatedly playing that song. I prefer the evidence of Ms Barber to that of Ms Hansen in this regard and find that after having received a copy of the application presently before me, Ms Hansen repeatedly drove past Ms Barber’s residence loudly playing the song, “I won’t back down.” I reject Ms Hansen’s assertion that she was playing the entire Tom Petty CD and that the song in question just happened to be playing at the time she drove past Ms Barber’s residence.

[52] I find that Ms Hansen embarked on a course of conduct designed to undermine and/or intimidate Ms Barber prior to her giving evidence.

[53] Ms Hansen contended that as she did not stop outside Ms Barber’s residence and therefore, she was not in breach of the Order. This evidence shows that Ms Hansen was aware of the Order. Based on the conduct of Ms Hansen during the trial, I believe that she understood the meaning of the Order. The fact that Ms Hansen did not stop outside Ms Barber’s residence does not mean the Order was not breached.

[54] If Ms Hansen’s conduct only amounted to her driving past Ms Barber’s residence in a normal fashion in order to access the nearby traffic light intersection, I do not believe this application would have been made and I would not be contemplating making an order to dismiss the substantive application”

[17] Further, Ms Hansen admitted to returning a letter sent to her by Mr Walsh on behalf of Calvary on 12 April 2016, after writing on the outside of the envelope:

“UP YOURS CUNT – NO SURRENDER” and “SUE ME 4 DEFAM Id love to get you suits in a court of any kind, I dare you.”

 2

[18] Ms Hansen also admitted to placing a sign near the street where Ms Barber lives with the words:

“CALVARY NURSE BULLIED/FIRED 4 REPORTING DRUG ERRORS. I PASSED LIE DETECTOR TEST. LIARS STILL WORK THERE.”

Submissions on Costs

[19] In relation to their costs application, Calvary submitted that:

• the s.399A application involved two elements, whether Ms Hansen failed to comply with the Order made by Commissioner Platt on 28 January 2016 and whether failure to comply with this Order was unreasonable;
• Ms Hansen received the Application along with the Statutory Declaration of Paul Hocking and the Affidavit of Samantha Barber on or about 7 April 2016;
• rather than admitting to the conduct in breach of the Order, Ms Hansen sought to explain her conduct;
• Ms Hansen denied engaging in the conduct in breach of the Order during the hearing and determination of the matter;
• the response to the Application by Ms Hansen, meant that the focus of the hearings on 15 April 2016 and 27 April 2016 was the factual foundation of the Application;
• it should have been reasonably apparent to Ms Hansen that her response to the Application, namely to deny the conduct in breach of the Orders, had no reasonable prospects of success based upon:

• Ms Hansen’s own knowledge of her conduct which was the factual foundation of the Application; and



• the material that supported the Application (the statutory declaration of Paul Hocking and the Affidavit of Samantha Barber;

• Ms Hansen’s response to Calvary’s Application was without reasonable cause;
• Ms Hansen’s unreasonable acts or omission caused Calvary to incur unnecessary Costs; and
• As it was found that that Ms Hansen breached the Order of the Commission, the Commission should exercise its discretion to order costs pursuant to either ss. 611(2)(a), 661(2)(b) or 400A of the Act.

[20] Ms Hansen’s submissions relevant to the costs application are:

• she was informed that “the winner did not get their costs paid by the other party;”
• Calvary chose to have a lawyer despite Ms Hansen’s objection therefore, they chose to incur legal expenses;
• she was under the impression that the Commissioner who presided over the member assisted conciliation believed her account of the circumstances surrounding the dismissal; and
• she cannot afford to pay costs.

[21] Calvary provided submissions in response, these stated:

• Ms Hansen’s supposed lack of knowledge of the Commission’s power to award costs is without substance as:

• in or about 7 April 2016, Ms Hansen became aware of Calvary’s intention to pursue costs against her as the s.399A application also sought an order for costs; and



• the service of the Application, should have put Ms Hansen on notice that Calvary was seeking a costs order;

• no general principle exists that a party is prohibited from the benefit of an order for costs in its favour because it has engaged a lawyer over the objection of the other party;
• there are a number of exceptions (such as ss.611 and 400A) to the general rule that parties must bear their own cost in the Commission;
• the circumstances in which the Commission is empowered to award costs under these sections is directed toward the conduct of the party against whom the costs order is being sought;
• a party’s objection to legal representation is not a relevant consideration for the Commission in determining whether a costs order should be made;
• the Commission and the Federal Court have ordered costs against self-represented parties in the past;
• even if it is appropriate for the Commission to consider Ms Hansen’s objection to its application to be represented by a lawyer, her conduct was such that it should still proceed to make the order for costs that has been sought in the costs application;
• Ms Hansen’s member assisted conciliation related to the merits of the unfair dismissal application, which is not the subject of the costs order;
• further, this application was private and confidential and cannot be relied upon in response to the application for costs;
• the capacity to satisfy a costs order is not a relevant consideration for the Commission; and
• even if it is appropriate for the Commission to take into account Ms Hansen’s capacity to pay costs, her conduct in this case was such that it should still proceed to make the order for costs that is being sought.

The power to award costs

[22] The power to award costs is discretionary and subject to specified statutory prerequisites. The presumption of the Act is that each party bears their own costs. However, costs may be awarded where the Commission is satisfied that the unreasonable act or omission of a party, in connection with the continuation or conduct of the matter, has caused the other party to incur costs.

[23] Section 611 of the FW Act provides as follows:

“FAIR WORK ACT 2009 - SECT 611

Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) The FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1).

[24] The meaning of the term “vexatiously” and “without reasonable cause” was discussed in Church v Eastern Health. 3 The Full Bench in that decision said the question of whether an application was made vexatiously looks to the motive of the applicant in making the application. An application is made vexatiously where the predominant purpose is to harass or embarrass the other party, or to gain a collateral advantage.4

[25] The term “without reasonable cause” is not enlivened simply because a party’s argument proves unsuccessful. The test is whether the application (or in this case position adopted) by the party should not have been made (or in this case taken). In Kanan v Australia Postal and Telecommunications Union,⁵ Justice Wilcox described the test as:

“whether upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success…..where on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may be properly said that the proceeding lacks a reasonable cause.”

[26] The meaning of the terms “should have been reasonably apparent” and “had no reasonable prospect of success” were considered by a Full Bench in Baker v Salva Resources Pty Ltd⁶ who said:

“[10] The concepts within s.611(2)(b) have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”

[27] On the evidence before me I do not believe that Ms Hansen had an ulterior motive in defending the s.399A application, Ms Hansen clearly wanted her ‘day in Court’ to prosecute her claim of unfair dismissal. On that basis I do not find that the position adopted by Ms Hansen was vexatious.

[28] With respect to position of defending the application “without proper cause” an assessment needs to be made if Ms Hansen’s conduct in defending the s.399A had no reasonable prospects of success, and objectively that fact should have been reasonably apparent to Ms Hansen.

[29] In the s.399A decision, I concluded as follows:

“[65] Ms Hansen conduct is not consistent with the robust pursuit of her claim. Based on my findings of fact and my own observations, I am satisfied that Ms Hansen has breached the Order made by me on 28 January 2016 and that Ms Hansen pursued her unfair dismissal application in an improper and unreasonable manner.

[66] Ms Hansen’s conduct is not trivial or justified by a heightened emotional state. As stated by Lord Denning “there can be no greater contempt than to intimidate a witness before he gives his evidence…”

Conclusion

[67] I am satisfied that Ms Hansen’s conduct is so abhorrent that it is appropriate to dismiss her unfair dismissal application. An Order to that effect will be issued in conjunction with this decision.

[30] The conduct that Ms Hansen was found to have engaged in can be divided into three time periods:

• The conduct that occurred prior to the lodgment of the s.399A application;
conduct which occurred after the s.399A application was served but prior to the hearing; and
• conduct which occurred during the hearing process.

[31] With respect to the first time period:

“[50] I reject Ms Hansen’s contention that she might have been speaking to herself, singing, or that she had spilled a drink in her car. These explanations were presented in a belligerent manner and are implausible when considering the frequency of the conduct and the distance between the vehicle and Ms Barber’s residence. I find that Ms Hansen drove past Ms Barber’s residence on over 30 separate occasions since the Order was granted and deliberately yelled obscenities and/or made threats towards Ms Barber.”

[32] With respect to the second time period I said the following:

“[51] In respect of the events of 12 April 2016, where Ms Hansen is accused of driving past Ms Barber’s residence playing the song “I won’t back down.” Ms Hansen accepted that she had a Tom Petty and the Heartbreakers disk in her car CD player but denies repeatedly playing that song. I prefer the evidence of Ms Barber to that of Ms Hansen in this regard and find that after having received a copy of the application presently before me, Ms Hansen repeatedly drove past Ms Barber’s residence loudly playing the song, “I won’t back down.” I reject Ms Hansen’s assertion that she was playing the entire Tom Petty CD and that the song in question just happened to be playing at the time she drove past Ms Barber’s residence.

[52] I find that Ms Hansen embarked on a course of conduct designed to undermine and/or intimidate Ms Barber prior to her giving evidence.”

[33] With respect to the third time period I found that:

“[47] During cross examination, Ms Hansen displayed a high level of animosity towards Ms Barber, called her “honey” , “darling” and “princess.” Ms Hansen accused Ms Barber of being a liar and asking her if she was “proud of herself.” Ms Hansen was afforded a considerable amount of latitude in her cross examination of Ms Barber. To her credit, Ms Barber made concessions as to the possibility of the time of the events not being accurate and conceded that it may have been possible in some instances that it was not Ms Hansen that drove past. Ms Barber was however, unshaken in her belief that on numerous occasions, a person who sounded like Ms Hansen drove past her residence and yelled profane language. This was supported by her own video footage and the footage obtained by Mr Hocking. I accept Ms Barber as a witness of truth. I also accept that she felt she was being harassed and felt threatened by Ms Hansen and the resulting stress impacted on her to such an extent that she had to take leave from work.

[48] In assessing Mr Hansen’s conduct before me, I have made some allowance for Ms Hansen’s unfamiliarity with Commission processes and her elevated emotional state. I also warned Ms Hansen that her conduct would be taken into account. Ms Hansen’s conduct in the witness box and at the bar table ranged from aggressive, defiant and belligerent to crying and expressing suicidal thoughts. I find that Ms Hansen was an extremely poor witness. Many of her explanations for her conduct were implausible. Insofar as her evidence conflicts with that of the other witnesses (noting Ms Barber’s concessions), I reject her account.”

[34] On 7 April 2016, having been served with the application to dismiss her substantive application, Ms Hansen should have been on notice that continued conduct in breach of the order may lead to the dismissal of the substantive application. Despite this Ms Hansen continued to engage in conduct in breach of the order.

[35] At the hearing, Ms Hansen initially denied the conduct. She then used fanciful explanations to describe what had occurred, this including stating that she was talking to herself loudly, or that she had cried out after spilling a beverage while turning a corner.

[36] In my view Ms Hansen, with the knowledge of the facts (including the statement of Mr Walsh, Mr Hocking, Ms Barber and the CCTV footage) provided by Calvary by 13 April 2016, and assisted by her own knowledge, should have realised that was no prospect of success of defending the s.399A application.

[37] This finding enlivens my discretion to award costs.

[38] With respect to Ms Hansen’s submission that it was Calvary’s decision to be legally represented, the fact that only one party is legally represented is not an impediment to the Commission’s power to award of costs. In this case I suspect Calvary’s legal representatives enabled Ms Hansen to be provided with a clear and concise account of the alleged conduct together with supporting evidence to enable her to consider her position.

[39] With respect to any advice provided to Ms Hansen during conciliation, this process is confidential and none of this information was before me. In addition the circumstances surrounding the dismissal were not before me as part of the s.399A application.

[40] Finally, Ms Hansen’s capacity to pay is a relevant consideration as to the time which should be allowed to pay any cost awarded, but parties should not consider that they are immune from costs due to their financial position.

[41] Having considered the submissions put to me by Calvary and Ms Hansen I have determined to award costs. This is in light of the repeated nature of the conduct, the continuation of the conduct after the s.399A application was served, Ms Hansen’s conduct during the course of the hearing, and the lack of any plausible explanation for the conduct.

[42] I award the party/party costs incurred by Calvary from 13 April 2016 until the s.399A decision was handed down on 31 May 2016.

[43] In the event that the parties cannot themselves resolve the amount to be paid 4 November 2016, the amount ordered to be paid will be assessed on application by the Calvary to the Chambers of Senior Deputy President Drake ([email protected]).

[44] An order requiring the Costs Respondent to pay an amount in costs to the Costs Applicant equal to the party/party costs relating to costs incurred in respect of the s.399A application between 7 April 2016 and 31 May 2016 will issued along with this decision. 7

[45] On the basis of my decision in respect of s.611, I do not need to further consider the s.400A application.

COMMISSIONER

 1  Named anonymised.

 2   Transcript PN1843 - PN1850.

 3   2014] FWCFB 810.

 4   Nilsen v Loyal Orange Trust (1992) 43 IR 257.

5 [1992] FCA 539.

6 [2011] FWAFB 4014.

 7   PR586853.

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