The Trustee for the MTGI Trust T/A Macquarie Technology Group International v David Johnston
[2015] FWCFB 6168
•7 SEPTEMBER 2015
| [2015] FWCFB 6168 [Note: refer to the Federal Court decision dated 18 October 2016 [2016] FCAFC 140 for result of appeal] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
David Johnston
(C2015/4021)
VICE PRESIDENT CATANZARITI |
|
Appeal against decision [[2015] FWC 996] and Order PR566623 of Justice Boulton at Sydney on 30 April 2015 in matter number U2014/345 - unfair dismissal - appeal against costs order - no appealable error established - no public interest.
[1] On 30 April 2015, the Senior Deputy President, Justice Boulton, issued an order 1 (Order) and decision2 (Decision) in matter U2014/345, an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) filed by Mr David Johnson (Applicant/Respondent to the Appeal) against his employer the Trustee for MTGI Trust T/A Macquarie Technology Group International (MTGI/Appellant).
[2] Previously, on 24 October 2014, His Honour issued a decision 3 awarding compensation to the Respondent. The Decision and Order issued on 30 April 2015 were in respect of a costs application. Although it is not necessary to traverse the details of that application, we note that the application concerned whether the response to the unfair dismissal application was made vexatiously or without reasonable cause and whether costs had been incurred due to the unreasonable acts or omissions of the Appellant.
[3] With respect to the costs application, the Senior Deputy President made the following relevant findings:
“[46] The parties did not present detailed submissions regarding the costs incurred by the applicant in relation to the unfair dismissal application or the appropriate amount of costs which should be awarded in this matter. However, having regard to the conduct of the proceedings and the circumstances of the case, I am satisfied that significant legal costs have been incurred by the applicant in pursuing the unfair dismissal application. Those costs have included the costs relating to the general care and conduct of the matter, including in dealing with and responding to the numerous emails sent to the Commission by the respondent in the course of the matter and the allegations raised by the respondent, and costs associated with the appearances of the applicant’s solicitor in the hearings. As set out earlier in this decision, I am also satisfied that costs have been incurred by the applicant due to the respondent’s unreasonable conduct in the proceedings and its pursuit of a response which had no reasonable prospect of success.
[47] I have decided that it is appropriate in this matter to make a lump-sum award of costs. This will avoid the expense, delay and possible aggravation which might be involved in further proceedings regarding the taxation and assessment of costs.
[48] In all the circumstances of the present matter, I consider that it is appropriate to award the applicant approximately half of the costs claims. Having regard to the difficulty of the matter and the complicated and protracted nature of the unfair dismissal proceedings, I consider that such an amount to be reasonable and fair in the circumstances of the case.”
[4] Accordingly, the Senior Deputy President made the Order in the following terms:
“Further to the decision dated 30 April 2015, the Fair Work Commission orders that the respondent pay $8,470 towards the costs of the applicant within 21 days of this order.”
[5] On 20 May 2015 the Appellant filed an appeal against the Decision and the Order, and indicated in the Notice of Appeal that it sought a stay of the Senior Deputy President’s Decision. The Vice President heard the parties on 29 May 2015 in relation to the stay application, and made a decision to grant the stay. The Vice President reduced his reasons for decision to writing. 4
[6] Prior to the hearing of the stay, Mr Wallace sought permission to appear for the Appellant and Mr Maroulis sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to the requirements of s.596 of the Act, permission was granted to both parties to be represented. That grant of permission continued before this Full Bench, however, before us, the Respondent was represented by Mr Duc.
[7] This decision is about the appeal, made pursuant to s.604 of the FW Act, in respect of which permission of this Full Bench is required.
Appeal principles
[8] Section 604(1) provides that an appeal can only be made if permission to that effect is granted. Section 604(2) states:
“604 Appeal of decisions
....
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”
[9] The Senior Deputy President’s decisions were made under Part 3-2 of the FW Act. Section 400 establishes a significant qualification with respect to appeals relating to unfair dismissal applications. Those applications are made under Part 3-2. Section 400 states:
“400 Appeal rights
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless FWC 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.”
[10] As a consequence, the Commission must not grant permission to appeal unless it is satisfied that to do so would be in the public interest. Furthermore, appeals of fact can only be made relative to significant error of fact. The test under s.400 has been characterised as a “stringent one”. 5
[11] In GlaxoSmithKline Australia Pty Ltd v Colin Makin 6 a Full Bench addressed the discretionary nature of assessing the public interest in the following terms:
“[27] ...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.”
[12] Unless an arguable case of appealable error is established the public interest requirement will rarely be met because an appeal cannot succeed unless error is established.
Permission to appeal - public interest
[13] MTGI submitted that it was in the public interest to grant permission to appeal because:
a) It is in the public interest to correct an injustice where the Appellant was not afforded procedural fairness in being denied the opportunity to appear at the costs decision hearing (“the Procedural Fairness Ground”);
b) It is of importance and general application for litigants in the Fair Work Commission to fully understand the costs regime of the Fair Work Act, and for the Full Bench to clarify how costs decisions should be made, and how s.440A and s.611 interact;
c) It is of importance and general application for litigants to fully understand the procedural requirements in applying for costs, and how the [Fair Work Regulations 2009] (“Regulations”) and Rules interact with the Fair Work Act;
((b) and (c) together “the Need for Litigants to Understand Grounds”)
d) It is in the public interest to elucidate how the discretion in the Fair Work
Regulations and Schedule of Costs in the Rules is to be exercised (“the Bill of Costs Ground”);
e) The Decision is disharmonious with other decisions of the Commission, such as Goffett v Recruitment National Pty Ltd [2009] AIRCFB 626 where the Respondent’s conduct was egregious compared with the Appellant’s conduct;
f) It is in the public interest to correct an injustice where a member of the Commission has properly applied Full Bench authority in incorrectly interpreting the meaning of:
• “vexatious” (in s.611(2)(a)) and
• “no reasonable prospects of success” (s.611(2)(b)).
((e) and (f) together “the Disharmonious Grounds”)
The Procedural Fairness Ground
[14] In order to address the Procedural Fairness Ground it is necessary to set out the chronology of events in this matter, which were as follows:
a) On 24 October 2014 the Senior Deputy President found the Applicant had been unfairly dismissed and made an award of compensation.
b) On 7 November 2014 the Applicant made a costs application against MTGI.
c) Directions were issued for the parties to file written submissions. The parties were asked to advise whether the costs issue could be determined on the papers.
d) On 11 December 2014 the Applicant filed his material (7 days late).
e) By the due date for the receipt of submissions from MTGI (being 18 December 2014) nothing had been filed.
f) On 13 January 2015 the chambers of the Senior Deputy President emailed the parties:
i. reminding them of the hearing on 15 January 2015;
ii. again asking if the matter could be dealt with on the papers (the Applicant agreed to this course).
g) On 14 January 2015 MTGI:
i. filed submissions on the merits of the costs application (i.e. 27 days late);
ii. objected to the late filing of the Applicant’s materials;
iii. did not agree to the matter being determined on the papers; and
iv. asked for the hearing to be stood over.
h) The costs application hearing was heard on 15 January 2015. At that hearing:
i. there was no attendance by the respondent;
ii. the Applicant’s solicitor made further oral submissions; and
iii. the Senior Deputy President requested further information from the Applicant about the basis for calculation of costs.
i) Shortly after hearing concluded MTGI emailed the chambers of the Senior Deputy President complaining about a lack of notice from the Commission about various matters (including whether VC would be available in Brisbane).
j) At 4.03 pm on 15 January 2015 the chambers of the Senior Deputy President advised the Respondent that it could make any further submissions by close of business on 22 January 2015 (i.e. after it has had an opportunity to review the transcript of the hearing).
k) At 4.32 pm on 15 January 2015 the Applicant emailed the Senior Deputy President’s chambers and Respondent about the further information requested by relating to the costs claimed. The email said “the costs claimed by the Applicant are $16,939.71.”
l) At 1.45 pm on 16 January 2015 MTGI emailed the Senior Deputy President and the Applicant (in short) stating that no orders can be enforced against the Respondent. It made no submissions about the amount claimed by the Applicant.
m) At 10.53 am on 20 January 2015 transcript of proceedings provided to the parties.
n) By 22 January 2015 no other further submissions were received from the Respondent. However, the Senior Deputy President delayed issuing the costs decision pending a Full Bench hearing concerning permission to appeal the substantive unfair dismissal application.
o) On 23 April 2015 a Full Bench dismissed application for permission to appeal substantive decision.
p) On 30 April 2015 the Senior Deputy President issued the costs decision.
[15] The correctness of the chronology was accepted by counsel for MTGI 7 and he then made the appropriate concession that “in a procedural fairness sense, that point that we’ve made [in the grounds of appeal] doesn’t have legs.”8
[16] There being no procedural error in how the Senior Deputy President conducted the hearing and then programmed the filing of submissions, there is no public interest raised by this ground. The Appellant had every opportunity to make whatever submissions it wanted to make about the costs being claimed by the Applicant. Other than to assert that no cost orders can be enforced against it, the Appellant elected not to avail itself of every opportunity provided to it by the Senior Deputy President.
The Need for Litigants to Understand Grounds
[17] In the Decision the Senior Deputy President set out the relevant legislative provisions. In his consideration of the matter his Honour then explained the operation of s.611(1) of the FW Act and s.400A(1) of the FW Act. He correctly identified that s.440A(1) is additional to the power to award costs under s.611(1) of the FW Act.
[18] The Senior Deputy President then correctly identified the need to undertake the necessary assessment with caution 9 before setting out, in some detail, the relevant legal authorities10 before coming to his decision that “the applicant has made out its case that the response of the respondent to the unfair dismissal application and its conduct in the proceedings were of such a nature to make it appropriate to award costs in this matter.”11
[19] We discern no error in the approach adopted by the Senior Deputy President. Nothing in the reasoning can be said to manifest an injustice or be otherwise said to be counter intuitive.
The Bill of Costs Ground
[20] In its Grounds of Appeal and in the appeal hearing MTGI argued that the interaction between the FW Act and the Regulations means that it is mandatory for members of the Commission, who are considering what costs should be awarded, to require a Bill of Costs. We disagree. The decision to award costs is a broad discretion. The operation of s.403(2)(b) of the FW Act and the Regulations do not mandate a Bill of Costs. In some circumstances it might be preferable but it is not mandatory.
[21] Further, had the Appellant taken up the opportunity to make submissions about the quantum of costs it could have requested a Bill of Costs or a detailed assessment of costs as directed by the Senior Deputy President. However, as we have already observed, the Appellant decided not to make any submissions in respect of the quantum of costs.
[22] In any case the Senior Deputy President had regard to the Schedule of Costs prescribed in Schedule 3.1 of the Regulations. 12 The Senior Deputy President dealt with the application for costs under the provision relating to general care and conduct. This is specifically provided for in item 1201 of Part 12 of the Schedule of Costs.
[23] Again, we discern no error in the Senior Deputy President’s decision in this respect. Further we observe that Counsel for the Appellant appropriately conceded that he did not “cavil … with that interpretation [of how the Senior Deputy President applied the Schedule of Costs]. 13
[24] Ultimately the amount decided upon by the Senior Deputy President was open to him and was not attended by any error. The Bill of Costs Ground raises no issue of public interest in this matter.
The Disharmonious Grounds
[25] As we have observed above, the decision to award costs is a broad discretion. While reference to other or like cases may be instructive, they are not prescriptive. It was open to the Senior Deputy President to decide how egregious the behaviour of the Appellant was. It was he who had the conduct of the substantive unfair dismissal hearing and observed the conduct of the Appellant. In this respect the argument advanced by the Appellant amounts to little more than a preference for a different outcome. This does not demonstrate appealable error. Further, in this regard, we discern no error in how the Senior Deputy President applied the terms “vexatious” (in s.611(2)(a)) and “no reasonable prospects of success” (in s.611(2)(b)).
Conclusion
[26] In determining this appeal we have taken into account all of the written material provided in support of the appeal and the parties’ submissions. For the reasons above, in respect of each ground said by the Appellant to invest the matter with public interest, we are not satisfied that MTGI has demonstrated any error in the Decision under appeal such that it could be said that Decision of the Senior Deputy President manifested an injustice, or the result was otherwise counter intuitive. For completeness, we do not consider that the appeal raises any issues of importance and general application, nor is there a diversity of decisions at first instance such that guidance from a Full Bench is required. In short, the matter is not invested with any public interest. There are no novel or exceptional issues apparent in these circumstances.
[27] Accordingly, we are not satisfied that permission to appeal should be granted, we decline to grant permission to appeal and, accordingly, the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr Duc for the Appellant.
Mr Maroulis for the Respondent.
Hearing details:
2015:
Sydney:
July, 15.
1 PR566623.
2 [2015] FWC 996.
3 [2014] FWC 7098.
4 [[2015] FWC 3641.
5 See Coal and Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at para 43
6 GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27]
7 Transcript PN52.
8 Transcript PN56.
9 [2015] FWC 996 at [27].
10 [2015] FWC 996 at [29] – [32]
11 [2015] FWC 996 at [34].
12 [2015] FWC 996 at [44].
13 Transcript PN78.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR571613>
2
5
0