The Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch

[2015] WASCA 150 (S)

THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH [2015] WASCA 150 (S)

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2015] WASCA 150 (S)
Case No:	IAC:4/2014	Heard:	4 AUGUST 2015
Coram:	BUSS J LE MIERE J MURPHY J	Delivered:	15/09/15
No of pages:	6	Judgment Part:	1 of 1
Result:	Respondent's application for an order that the appellant pay costs to the respondent for the services of a legal practitioner is dismissed
Category:	B
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Parties:	THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Catchwords:	Costs Awarding costs incurred for legal services provided in Industrial Appeal Court proceedings Whether appeal instituted frivolously or vexatiously
Legislation:	Industrial Relations Act 1979 (WA)
Case References:	Matthews v Cool & Cozy Pty Ltd [2003] WASCA 136 The Commissioner of Police of Western Australia v AM [2010] WASCA 163(S)

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH [2015] WASCA 150 (S) CORAM : BUSS J

LE MIERE J
MURPHY J

HEARD : 4 AUGUST 2015 DELIVERED : 15 SEPTEMBER 2015 FILE NO/S : IAC 4 of 2014 BETWEEN : THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA

Appellant

AND

THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : J H SMITH ACTING PRESIDENT

A R BEECH CHIEF COMMISSIONER
S M MAYMAN COMMISSIONER

Citation : [2014] WAIRC 00535

File No : FBA 12 of 2013

Catchwords:

Costs - Awarding costs incurred for legal services provided in Industrial Appeal Court proceedings - Whether appeal instituted frivolously or vexatiously

Legislation:

Industrial Relations Act 1979 (WA)

Result:

Respondent's application for an order that the appellant pay costs to the respondent for the services of a legal practitioner is dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D J Matthews
Respondent : Mr T R Kucera & Ms R Young

Solicitors:

Appellant : State Solicitor for Western Australia
Respondent : W G McNally Jones Staff Lawyers

Case(s) referred to in judgment(s):

Matthews v Cool & Cozy Pty Ltd [2003] WASCA 136
The Commissioner of Police of Western Australia v AM [2010] WASCA 163(S)



1 BUSS J: I agree with Le Miere J.

2 LE MIERE J: This court dismissed an appeal by the appellant against the decision of the Full Bench of the Western Australian Industrial Relations Commission. The respondent sought an order that the appellant pay the respondent's costs of the appeal. The appellant opposed this order. The court called for written submissions from the parties and directed that a decision on costs be made on the papers.

3 Section 86(2) of the Industrial Relations Act 1979 (WA) (the Act) provides this court with the power to award costs:

In the exercise of its jurisdiction under this Act the Court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the Court, including proceedings dismissed for want of jurisdiction, but costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Court, the proceedings have been frivolously or vexatiously instituted or defended as the case requires, by the other party.

4 The operation of s 86(2) was explained by this court in Matthews v Cool & Cozy Pty Ltd [2003] WASCA 136:

It is clear that the policy envisaged by s 86(2) is that it will be on very rare occasions that a costs order will be made. Proceedings will have been 'frivolously or vexatiously' instituted where it can be said that the matter was 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; that it 'discloses a case which the Court is satisfied cannot succeed'; or that 'under no possibility can there be a good cause of action' … [9].

5 Section 86(2) was considered by this court in The Commissioner of Police of Western Australia v AM [2010] WASCA 163(S). Buss J (with whom Pullin and Le Miere JJ agreed) made a number of observations about the court's power under s 86(2) to order the unsuccessful party to an appeal to pay the costs of any other party for the services of, relevantly, any legal practitioner of that party. First, the court has no power to order the unsuccessful party to pay the costs of any other party for the services of any legal practitioner of that party unless, in the opinion of the court, 'the proceedings have been frivolously or vexatiously instituted or defended, as the case requires' by the unsuccessful party. Secondly, if the court is of the opinion, in a particular case, that the proceedings were frivolously or vexatiously instituted or defended, as the case may be, the formation of this opinion enlivens the court's discretion to order the unsuccessful party to pay the costs of any other party for the services of any legal practitioner of that party. It does not, however, follow that where the test for enlivening the court's discretion to award legal costs has been satisfied that an order for the payment of those costs will necessarily be made. Where the test is satisfied, the court may, nevertheless, having regard to the general policy of s 86(2) and all the circumstances of the case, decide, in the exercise of its discretion, to make no order as to costs. Thirdly, the test for enlivening the court's power to order the payment of legal costs is whether the proceedings have been frivolously or vexatiously instituted or defended, as the case may be, and not whether the proceedings are in fact frivolous or vexatious. Fourthly, the ordinary meaning of 'frivolously', in relation to a claim, is, relevantly, having no reasonable grounds for the claim and the ordinary meaning of 'vexatious', in relation to a claim, is, relevantly, instituting the claim without sufficient grounds for success purely to cause trouble or annoyance to the other party. Fifthly, something substantially more than either a lack of success, or the prospect of a lack of success, must be established before an unsuccessful party can be held to have frivolously or vexatiously instituted or defended, as the case may be, an appeal under s 90. Not every appeal which is determined to be without merit, either because this court does not have jurisdiction or otherwise, will necessarily have been instituted frivolously or vexatiously.

6 The respondent submits that the appellant's case was frivolously or vexatiously instituted. The appellant had one ground of appeal. The appellant alleged that the Full Bench erred in its interpretation of the term 'public interest' in s 27(1)(a)(ii) of the Act. The respondent submits that the appellant's particulars to the ground of appeal reveal why the matter was frivolous and vexatious. The respondent submits that despite the appeal ground being framed as being based on an error of interpretation of the Act, the particulars to that ground make it obvious that the Appellant was trying to coerce the Court to engaged in a merit review of the Full Bench's decision.

7 The particulars to the appellant's ground of appeal were:

The Full Bench erred in interpretation of the term 'public interest' by failing to properly consider the potential for conflict between the decision of His Honour McKechnie J in granting Mr M a spent conviction order and the continuation of the unfair dismissal claim brought on Mr M's behalf in circumstances where potential for conflict arose out of the following:

(a) His Honour, in granting Mr M a spent conviction order, had considered whether Mr M would be likely to commit such an offence again, and had, not having been made aware of the unfair dismissal claim, relied on, as a fact, that Mr M would be unlikely to obtain employment in a position in which he may exercise lawful force over others;

(b) His Honour, in granting Mr M a spent conviction order, had considered whether personal and general deterrence considerations would still be met if a spent conviction order was granted, and had, not having been made aware of the unfair dismissal claim, relied on, as a fact, that Mr M had lost his employment;

(c) the continuation of the unfair dismissal claim would be in conflict with His Honour's decision as His Honour assumed the following and had no reason to not assume the following:


i. that there were no proceedings on foot at the time of His Honour's decision that sought that Mr M be returned to his employment or otherwise compensated for the loss of his employment;

ii. that Mr M would not be returned to his employment or otherwise compensated in relation to the loss of his employment as a result of proceedings on foot at the time of His Honour's decision;

iii. that whether or not Mr M was re-employed by the appellant was a matter entirely for the appellant,

when the facts were that,

iv. an unfair dismissal claim was on foot;

v. the claim had the potential to return Mr M to his employment, or otherwise compensate Mr M in relation to the loss of that employment; and

vi. it was not, at the time His Honour made his decision, a matter entirely for the appellant whether Mr M would be employed by it in the future.

8 The respondent's characterisation of the appeal as an attempt to coerce the court to engage in a merit review of the Full Bench's decision is not a fair or accurate characterisation of the appellant's argument on appeal. The appellant argued that in deciding where the public interest lay, it is evident from a consideration of the reasons for decision of the Full Bench that the Full Bench acted on a wrong principle of law applying to s 27(1)(a)(ii) or, put another way, did not correctly understand the applicable law and thus erred in the construction or interpretation of s 27(1)(a)(ii). That argument required a consideration of the reasons for decision of the Acting President and the Chief Commissioner. The court held that an analysis of those reasons for decision did not disclose that the Acting President or the Chief Commissioner misunderstood the meaning of 'public interest' in s 27(1)(a)(ii). However, I am not satisfied that the appellant's case, when the appeal was instituted, was so obviously untenable that it could not possibly succeed or was manifestly groundless.

9 The appellant further argued on the appeal that there was only one conclusion reasonably open in relation to the matter of public interest and that as the Full Bench reached a different conclusion it must have misunderstood the statutory criterion imported by s 27(1)(a)(ii) and thereby erred in the construction or interpretation of s 27(1)(a)(ii). That argument also required a careful consideration of the reasons for decision of the Acting President and the Chief Commissioner. After analysing those reasons the court was not persuaded that the only conclusion reasonably open to the Full Bench was that further proceedings are not desirable in the public interest and, in any event, if the only conclusion reasonably open to the Full Bench was that further proceedings are not desirable in the public interest and the Full Bench reached a contrary conclusion, it may have done so because it made incorrect findings of fact or it incorrectly applied the facts to the law which it correctly understood. I am not persuaded that at the time it instituted the appeal, the appellant's argument was so obviously untenable that it could not possibly succeed or was manifestly groundless.

10 I find that the appeal was not instituted frivolously or vexatiously. The respondent's application for an order that the appellant pay costs to the respondent for the services of a legal practitioner should be dismissed.

11 MURPHY J: I agree with Le Miere J.