| [2016] FWCFB 2478 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
SYDNEY, 11 AUGUST 2016 |
Appeal against decision [2015] FWC 2447 of Commissioner Williams at Perth on 9 April 2015 in matter number U2014/11321.
Introduction and background
[1] On 30 July 2014 Mr Matthew Gugiatti lodged an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy against his former employer, SolarisCare Foundation Ltd (SolarisCare). In response to the application, SolarisCare contended that the Commission did not have jurisdiction to hear the matter because, firstly, Mr Gugiatti was engaged for a specified period for the purposes of s.386(2)(a) of the FW Act and had not been dismissed and, secondly, his employment did not last for the minimum employment period in s.382 necessary to sustain an unfair dismissal remedy application against a small business employer.
[2] In a decision issued on 9 April 2015 1 (Commissioner’s decision), Commissioner Williams upheld both of SolarisCare’s jurisdictional objections and dismissed the application. On 30 April 2015 Mr Gugiatti filed a notice of appeal against this decision pursuant to s.604 of the FW Act. Under s.604, permission was required for this appeal to succeed.
[3] On 5 February 2016, this Full Bench issued a decision 2 (appeal decision) in which Mr Gugiatti was refused permission to appeal. The appeal decision described procedural difficulties which arose in the conduct of Mr Gugiatti’s appeal as follows:
“[2] On 30 April 2015, Mr Gugiatti filed a notice of appeal against the Commissioner’s decision. The appeal was originally listed to be heard in June 2015, but was adjourned to 19 January 2016 at the appellant’s request, on medical grounds.
[3] On 15 January 2016, Mr Gugiatti emailed the Commission to request a further adjournment on medical grounds. On 18 January 2016, he was advised that his application would not be granted and that the matter would proceed as scheduled at 2:00pm Eastern Standard Time on 19 January 2016.
[4] On 19 January 2016, approximately five minutes before the hearing was due to commence, Mr Gugiatti provided a statutory declaration outlining further medical grounds on which he contended the matter should be adjourned again, for an unspecified period. We considered the statutory declaration filed in support of the adjournment application. We decided to refuse the appellant’s application on the grounds that we were not satisfied that the appellant was medically incapable of appearing before the Commission and advancing submissions in support of his appeal. The appellant was advised accordingly and the matter was stood over to the next day.
[5] The hearing proceeded on 20 January 2016. There was no appearance for Mr Gugiatti.
[6] Mr Gugiatti has not complied with directions to provide an outline of submissions in support of his appeal before the hearing. The only material we have before us in support of his appeal, therefore, is his notice of appeal itself. Several of the grounds of appeal relate to allegedly improper actions by SolarisCare, e.g. failing to produce documents and submitting evidence close to the hearing date at first instance. Mr Gugiatti also contends that the Commissioner made errors of fact that led to him dismissing the application on jurisdictional grounds (e.g. finding that SolarisCare was a small business), and that the Commissioner did not adequately consider the impact his ill health had on his ability to prepare for the first-instance hearing.”
[4] Our reasons for the refusal of permission to appeal were as follows:
“[11] Nothing in the information available to us indicates that it would be in the public interest to grant Mr Gugiatti permission to appeal. We accept SolarisCare’s submission that many of the grounds of appeal advanced are not directed to the Commissioner’s reasons for his decision. Those which do relate to those reasons appear to be unsupported allegations. There is no issue of importance or general application arising from Mr Gugiatti’s application at first instance. The Commissioner’s decision is an orthodox application of the provisions of the FW Act which confer jurisdiction on this Commission to award unfair dismissal remedies. Moreover we are satisfied that the Commissioner has not made any error in the application of those principles to the facts as presented to him.”
[5] On 19 February 2016 SolarisCare made an application for its costs of the appeal. The application is made pursuant to ss.611(2) and 400A of the FW Act.
Applications for adjournment of the costs application
[6] On receipt of SolarisCare’s costs application, a direction was made requiring that SolarisCare file and serve its submissions and any other documentary material in support of the application by 4 March 2016. Mr Gugiatti was directed to file and serve his submissions and any evidence in reply by 11 March 2016.
[7] SolarisCare complied with the directions but Mr Gugiatti did not. On 15 March 2016 the Associate to the presiding member of this Full Bench sent Mr Gugiatti an email reminding him of the direction and requesting that he file his documents as a matter of urgency. On 31 March 2016 the Commission received a telephone call from Mr Gugiatti’s sister indicating that he was very unwell, had not been checking his email or responding to telephone calls, and that medical evidence of his condition would be forthcoming. She requested that the proceedings be stayed.
[8] On 15 April 2016 the Commission received an email from Mr Gugiatti asking that the proceedings be adjourned for a period of three months. Accompanying the email were two medical certificates. The first, dated 4 April 2016, was from Dr Kate Bozic, apparently a general practitioner. It stated:
“Matthew consulted me on the 14th of March 2016 and due to significant health problems he is currently unfit to participate in proceedings relating to an unfair dismissal claim and will remain unfit to do so for the next two months while he receives medical treatment.
Given Matthew’s medical condition he had likely been unwell for some time prior to his review by myself.”
[9] The second, dated 7 April 2016, was from Dr Mik Parola, also apparently a general practitioner. It stated:
“This medical certificate is to certify that I reviewed Matthew Gugiatti at our surgery today.
In my opinion, he is currently unwell and has been receiving treatment since January this year. He is likely to remain unwell over the coming months and I will review him again periodically. I am happy to supply an updated medical certificate at your request.”
[10] There were some issues about whether the material supplied by Mr Gugiatti should be served on SolarisCare so that it could respond to the adjournment application. Mr Gugiatti’s position was that the medical certificates which accompanied the email should only be supplied on the basis that the names of the practitioners were redacted. On 28 April 2016 the Associate to the presiding member sent an email to Mr Gugiatti indicating that the presiding member’s view was that there was no reason why the medical certificates should not be provided to SolarisCare, and that unless Mr Gugiatti provided reasons as to why they were confidential, they would be forwarded to SolarisCare at 5.00pm on 5 May 2016.
[11] At 4.55pm on 5 May 2016, Mr Gugiatti sent a four-page letter in the nature of a submission in reply, in which he maintained his position concerning the provision of the medical certificates. In the course of this correspondence, Mr Gugiatti summarised some of the history of the appeal proceedings, and requested that the costs application be transferred to a different Commissioner not associated with the hearing at first instance or the appeal hearing “to avoid any potential bias or the apprehension of the same”. In relation to the application for the adjournment, the submission stated:
“Application for Adjournment – Costs Application (Appeal)
8. I am an impecunious student. The Respondent’s application seeks a very large sum of money and is potentially crushing. I submit that an adjournment of this matter is required to allow a proper rebuttal, when I am fit to do so, at a time that is consistent with the medical evidence provided.
9. The provisions of the Fair Work Act 2009 (Cth) that the Respondent relies on for seeking costs are relatively new and were only enacted in 2012. As new provisions, there has been limited testing of their application. As a self-represented individual, I seek additional time to address assertions under these provisions.
10. I am presently impecunious and reliant on CLC and pro-bono legal advice. The delay associated with these not-for-profit services is significant. I am currently awaiting advice.”
[12] The correspondence finished by stating that Mr Gugiatti did not consent to it being provided to SolarisCare, but that he was happy to provide a version “redacting sensitive personal and health information, at the Commission’s request”.
[13] It is necessary to make some observations about this correspondence, since it influenced the view ultimately taken as to Mr Gugiatti’s capacity to file a submission in response to the costs application. It displayed a very high degree of literacy, set out in an ordered and indeed sophisticated way the arguments which Mr Gugiatti wished to advance, and revealed a substantial degree of familiarity with legal concepts. In the course of the correspondence Mr Gugiatti disclosed “I am soon to graduate with inter alia a Bachelor of Laws”.
[14] On 13 May 2016 the Associate to the presiding member sent Mr Gugiatti an email stating:
“As previously advised to you, any material you provide to the Commission is as a matter of normal practice to be made available to the other party to the proceedings unless a confidentiality order is made under the Fair Work Act 2009. The Commission proposes to:
1. Provide copies of the medical certificates sent by you to the Commission on 15 April 2016 to the respondent to your appeal. It is not considered that there is anything in those medical certificates which discloses any personally confidential matter.
2. Likewise the submission sent to you on 5 May 2016 will be sent to the respondent.
The above materials will be provided to the respondent on the usual basis that they are to be used for the purposes of these proceedings, and not for any other purpose.
The costs application is currently before the Full Bench consisting of Vice President Hatcher, Senior Deputy President Hamberger and Commissioner Saunders. If you wish to make an application that the Bench should recuse itself from hearing the costs application on the basis of actual or apprehended bias or on some other basis, you will need to make that application in clear terms. The Full Bench will otherwise continue to hear the matter.
Please note that a copy of this correspondence has also been sent to your postal address.”
[15] Mr Gugiatti did not subsequently make an application for the Full Bench to recuse itself from hearing the costs application.
[16] Also on 13 May 2016, the Commission supplied Mr Gugiatti’s email and medical certificates sent on 15 April 2016, and his correspondence of 5 May 2016, to SolarisCare, and requested that it provide a response to Mr Gugiatti’s adjournment application by 5.00pm on 20 May 2016. On 20 May 2016 SolarisCare sent to the Commission by email a short submission in which it opposed the grant of an adjournment and requested that the Commission determine the costs application on the material before it.
[17] On 25 May 2016 the presiding member’s Associate sent the following email to the parties:
“The Full Bench has determined to refuse Mr Gugiatti’s request for the consideration of the costs application made by SolarisCare Foundation Ltd on 19 February 2016 to be adjourned. The Full Bench is not satisfied that Mr Gugiatti is medically incapable of providing a response to the application. The medical certificates provided by Mr Gugiatti do not establish the existence of any such incapacity, and the literacy, level of detail and sophistication of Mr Gugiatti’s written submissions in support of his adjournment application received by the Commission on 5 May 2016 strongly supports the conclusion that he is readily capable of responding to the costs application.
The Full Bench will proceed to determine the costs application. In this respect, Mr Gugiatti is directed to provide any submissions he wishes to make in response to the application in writing by 5.00pm 8 June 2016. The Full Bench will then determine the costs application and provide its decision to the parties.
Please note that a copy of this email has been sent to Mr Gugiatti’s postal address.”
[18] Mr Gugiatti did not file any submission in response to the costs application by 8 June 2016 as directed. However on 9 June 2016 he sent by email an application requesting a three month adjournment of the costs application. Accompanying this was a medical certificate from Dr Kate Bozic dated 23 May 2016 which stated that “due to significant health problems he is currently unfit to participate in proceedings relating to an unfair dismissal claim” and would remain unfit for the next two months. There was also a further medical certificate from Dr Bozic dated 7 June 2016 which described Mr Gugiatti’s medical condition and stated that he would remain unfit “to participate in unfair dismissal proceedings” for a further three months “until 7th September 2016, at which time I will be able to reassess his fitness”. There were also other documents of a medical nature accompanying this email.
[19] On 14 June 2016 the following email was sent to the parties:
“The Full Bench will not grant any further adjournments in this matter.
The Full Bench will proceed to determine the Respondent’s costs application on the basis of the submissions filed to date.”
[20] The above conclusion was reached because Mr Gugiatti was only required to provide a written submission in response to SolarisCare’s costs application (and was not required to participate in any formal hearing) and had demonstrated in his prior correspondence, particularly that of 15 May 2016, that he was well capable of providing such a submission. Accordingly this decision is made in determination of SolarisCare’s costs application, and proceeds upon the submissions and supporting material filed by SolarisCare on 4 March 2016.
Section 611(2)
[21] Section 611(1) of the FW Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are a number of provisions in the FW Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. The first provision invoked by SolarisCare, s.611(2), is one such exception. It provides:
(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.
[22] The relevant principles concerning the interpretation and application of s.611(2)(a) were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing 3 and may be summarised as follows:
[23] In relation to s.611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd 4 as follows (footnotes omitted):
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
[24] SolarisCare submitted in relation to s.611(2)(a) that Mr Gugiatti’s notice of appeal identified no arguable point of law on the threshold matter by which permission to appeal may be granted, in that it raised multiple matters extraneous to the decision under appeal, relied on unsupported allegations about the supposed existence of evidence, and did not properly identify any matter of public interest or substantial error of facts. It added that the decision under appeal was patently correct since, on Mr Gugiatti’s own evidence and the facts known to him at the time he instituted his appeal, his contract of employment was for a specified period and thus he was precluded from being granted an unfair dismissal remedy. This lack of merit, it was submitted, was reflected in the appeal decision. It was not submitted that Mr Gugiatti instituted the appeal proceedings vexatiously.
[25] In relation to s.611(2)(b), SolarisCare likewise submitted that the deficiencies in the grounds of appeal meant that Mr Gugiatti’s appeal had no reasonable prospects of success as it was, objectively, manifestly untenable or groundless, and so lacking in substance as not to be reasonably arguable.
[26] It may be accepted that Mr Gugiatti’s appeal notice contained a number of grounds of appeal that were entirely extraneous to the decision under appeal and, considered in isolation, had no prospect of attracting the grant of permission to appeal. Many of the grounds concerned procedural matters, such as the failure of the Commissioner to grant an adjournment of the hearing, without attempting to demonstrate how they could possibly have operated to vitiate the conclusions reached by the Commissioner. Other grounds raised issues which were speculative in nature and did not amount to any proper contention of error, such as “The Appellant and Respondent have documentary evidence in their possession, custody and/or power that is discoverable, that was not put before the Commission, because of poor timetabling, which if it was put before the Commission, would necessarily cause the Commission to reach a different conclusion”. However there were other grounds of appeal which, on their face, directly challenged the factual and legal basis of the conclusion reached by the Commissioner in his decision. In this respect we refer to the following appeal grounds:
“Commissioner Williams Erred, in:
1. finding that there was a contract for a specified period, because inter alia:
a. there was a lack of evidence to reasonably support this conclusion;
b. the evidence before the commission reasonably supported the opposite conclusion;
c. there is evidence in the possession, custody and/or power of the Appellant and Respondent that is discoverable that supports the opposite conclusion; and/or
d. the Commissioner did not consider the issue of automatic renewal, where renewal is expected and/or a mere formality, based on a pattern of prior business practice.
2. finding that the Respondent is a small business…
Significant Errors of Fact
1. Commissioner Williams erred in:
a. determining the number of employees of the Respondent and therefore whether the Respondent is a small business.
b. reckoning the Appellant's period of employment, by:
i. misconstruing the end date of employment;
ii. miscalculating purported unauthorised days of leave; and
iii. not considering the significant additional hours worked by the Appellant, by way of offsetting purported unauthorised days of leave and/or reckoning the Appellant's total period of employment.”
[27] The difficulty in assessing the merits of these grounds of appeal was, as disclosed in our earlier decision of 5 February 2016, that Mr Gugiatti never filed an appeal book containing the evidence that was adduced before the Commissioner, never filed an outline of submissions in accordance with the Commission’s directions, and did not appear before the Commission to make oral submissions. That means that the merit of the appeal can only be assessed by reference to the appeal grounds and the decision under appeal. As earlier set out, the appeal decision said in relation to those appeal grounds which were actually directed to the Commissioner’s decision that they were “unsupported allegations”. We characterised them as “unsupported” because Mr Gugiatti never advanced anything to support them. However that does not mean that they were intrinsically without merit. It may have been that, supported by proper submissions and with the benefit of an appeal book, those grounds may have been considered to be arguable. Because they dealt with jurisdictional issues, that may in turn have meant that there were real prospects of permission to appeal being granted.
[28] For these reasons, we cannot positively conclude, for the purpose of s.611(2)(a), that Mr Gugiatti instituted his appeal without reasonable cause. For the same reasons, we cannot find under s.611(2)(b) that it should have been reasonably apparent to Mr Gugiatti that his appeal had no reasonable prospect of success. There is therefore no power to order costs against Mr Gugiatti under s.611(2).
Section 400A
[29] Section 400A, which is another exception to the general rule in s.611(1), provides:
Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC's power to order costs under section 611.
[30] A preliminary question arises as to whether an appeal proceeding under s.604 of the FW Act involving an appeal against an unfair dismissal decision may be “a matter arising under this Part” (that is, Pt.3-2, Unfair Dismissal, of the FW Act) in relation to which s.400A may operate. We note that we can identify at least three Full Bench decisions in which a party’s costs of an appeal from an unfair dismissal were ordered to be paid under s.400A. 5 However in each case the application of s.400A appears to have been assumed rather than analysed.
[31] The expression “a matter arising under this Part” in s.400A(1) uses language which has been assigned a broad meaning where used in other legislative contexts. In the context of s.76 of the Australian Constitution, the expression “any matter... arising under any laws made by the Parliament” has been interpreted as referring to the whole of a justiciable dispute or controversy rather than a particular legal proceeding in which the dispute or controversy is agitated. 6 In relation to the power to award costs under s.347(1) the Industrial Relations Act 1988, which prohibited an order for costs against a party to a proceeding “in a matter arising under this Act” unless the party instituted the proceeding vexatiously or without reasonable cause, it has been held that the provision applied to any proceeding where the right or duty sought to be enforced was one which owed its existence to the Act.7
[32] That causes us to conclude that s.400A does apply to an appeal against a decision in relation to an application made under Pt.3-2. Such an appeal forms part of a matter arising under Pt.3-2 because it concerns a dispute about a dismissal from employment which is alleged, by way of an application made under s.394, to have been unfair. An appeal against an unfair dismissal decision can be characterised as a proceeding seeking to enforce the Commission’s duty to decide an unfair dismissal remedy application in accordance with the provisions of Pt.3-2, and thus owes its existence to Pt.3-2.
[33] The legislative history supports this interpretation. Section 400A was added to the FW Act by item 4 of Schedule 6 of the Fair Work Amendment Act 2012. The explanatory memorandum for the Fair Work Amendment Bill 2012 which gave rise to that Act stated, among other things, that this amendment was intended to give effect to recommendation 45 of the June 2012 report (Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation) of the Fair Work Act Review Panel. Recommendation 45 of that report was as follows:
“The Panel recommends that the FW Act be amended to allow FWA to make costs orders against a party that has unreasonably failed to discontinue a proceeding, or that has unreasonably failed to agree to terms of settlement that could have led to discontinuing the application, or that has through an unreasonable act or omission caused the other party to incur costs.”
[34] In relation to this recommendation, the report relevantly stated at [10.9.4] (emphasis added):
“We also recommend extending the circumstances in which costs can be ordered against parties and their representatives. We see merit in reintroducing the provisions referred to above, which enable costs to be awarded against either side when there is an unreasonable failure to discontinue or settle proceedings, or where unreasonable acts of omissions result in costs being incurred. Further, we note that the power in s.401 to award costs against a lawyer or paid agent is only enlivened once FWA has granted permission for the lawyer or agent to represent a party. However, many cases do not reach the formal stage where permission is sought and given. Circumstances may arise before that point when it would be appropriate to exercise the power conferred by s.401. The power to award costs should not depend on the formal grant of representational rights.”
[35] The reference to “in reintroducing the provisions referred to above” is to [3.3.7] of the report, which described the unfair dismissal provisions applying to the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (WR Act). This part of the report relevantly stated:
“The AIRC was also empowered to order costs in respect of vexatious or unreasonable applications or an unreasonable failure to agree to terms of settlement. The court [sic] was permitted to order costs when a party instituted proceedings vexatiously or unreasonably, or conducted themselves unreasonably in the course of the proceeding.”
[36] Prior to the Workplace Relations Amendment (Work Choices) Act 2005, the provisions empowering the award of costs referred to in the above passage of the report were contained in s.170CJ of the WR Act. The legislative history of that provision is instructive. As enacted in 1996, s.170CJ(2) empowered the Commission to order costs against a party where the Commission was satisfied that, after the Commission had begun arbitrating an unfair dismissal application, the party had “acted unreasonably in failing to discontinue the proceedings or to agree to terms of settlement”, and s.170CJ(3) also empowered the Commission to order costs against a party which had elected to take an unfair dismissal application to arbitration and then had discontinued if it was satisfied that the party had “acted unreasonably in failing to discontinue the application at an earlier time”. In K.M. Lloyd v International Health & Beauty Aids Pty Ltd t/as Elly Lukas Beauty 8 a Full Bench of the Australian Industrial Relations Commission determined that s.170CJ(2) did not operate with respect to appeal proceedings concerning an unfair dismissal decision having regard to a number of contextual matters including the terms of s.170CJ(3).
[37] Section 170CJ was substantially amended by items 31-33 of Schedule 1 of the Workplace Relations Amendment (Termination of Employment) Act 2001. As a result of the amendments, s.170CJ(3) provided:
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party's unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.
[38] A new s.170CJ(8) was also added by the amendments which provided that “proceedings relating to an application under section 170CE” included, among other things, “...(e) an appeal to the Full Bench from an order of the Commission under section 170CH or a costs order under section 170CJ...”. After the amendments effected by the Workplace Relations Amendment (Work Choices) Act 2005, s.170CJ(3) became s.658(3) of the WR Act, and s.170CJ(8) was s.658(10).
[39] We infer from this history that the legislative intention in the enactment of s.400A of the FW Act was to re-introduce the costs provision in s.170CJ(3) of the WR Act as it was after the Workplace Relations Amendment (Termination of Employment) Act 2001 - a provision which was applicable to appeals by virtue of s.170CJ(8). Thus an interpretation of s.400A which renders it applicable to appeals from unfair dismissal proceedings is consistent with that legislative intention and history.
[40] It might be said against this interpretation that it would be anomalous to have different costs provisions applying to appeals against unfair dismissal provisions as compared to most other types of appeals. However other provisions of the FW Act apply special requirements to unfair dismissal decision appeals which are not applicable to most other types of appeals. Specifically, s.400(1) requires that the Commission must not grant permission to appeal from a decision made under Pt.3-2 unless it considers that it is in the public interest to do so, and s.400(2) requires that an appeal against a decision under Pt.3-2, to the extent that it concerns a question of fact, must be made on the ground that the decision involved a significant error of fact. It is apparent therefore that the legislature intended that special provisions would apply to appeals from unfair dismissal decisions.
[41] We therefore conclude that s.400A is capable of application to Mr Gugiatti’s appeal.
[42] Section 400A(2) requires that, to succeed, a costs application must have been made in accordance with s.402, which relevantly provides that the application must be made within 14 days after the Commissioner determines the matter. SolarisCare’s application was made within that time period.
[43] Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.
[44] SolarisCare submitted that Mr Gugiatti engaged in the following unreasonable acts and omissions:
[45] SolarisCare provided a copy of an itemised bill of legal costs incurred by it in connection with the appeal. It contended that Mr Gugiatti caused those costs to be incurred by the unreasonable acts and omissions set out above.
[46] We accept that Mr Gugiatti engaged in unreasonable acts or omissions in relation to his non-attendance at the hearings on 19 and 20 January 2016 and his failure to provide timely advice to the Commission and SolarisCare concerning this. To explain why we have reached this conclusion, it is necessary to set out some of the chronology of events.
[47] As stated in the appeal decision, Mr Gugiatti’s matter was originally listed to be heard in relation to the issue of permission to appeal in June 2015, but it was adjourned because the Commission accepted medical evidence that Mr Gugiatti was at that time not medically fit to proceed to appear in person at the hearing (he not being legally represented). On 18 September 2015 Mr Gugiatti provided the Commission with a medical certificate which indicated that he would remain unfit to proceed with his appeal for a period of approximately three months. On 23 September he sent a letter to the Commission requesting that his matter “remain adjourned until the New Year”, at which time he would “provide the Commission with an update”. In light of this advice, the parties were informed on 1 October 2015 that the Commission was minded to adjourn the proceedings until January 2016, and if SolarisCare opposed this course it was required to file a submission concerning the procedural course the appeal should take by 9 October 2015. No such submission was filed, and on 19 October 2015 the Commission advised the parties by email that, on the basis of medical evidence, Mr Gugiatti would be unable to proceed with his appeal for a period of three months and the matter would be adjourned until January 2016 when it would be placed in the permission to appeal roster for that month. The email further advised that “A Notice of Listing and Directions will be sent to the parties when the matter has been allocated to the roster”.
[48] On 10 December 2015, the parties were advised that the matter would be placed on the permission to appeal roster for hearing on 19 January 2016. On 18 December 2015 the formal listing of the matter was sent to the parties which identified that the matter was listed for hearing (by video link) before the Full Bench on 19 January 2016 (at not before 2.00pm AEDT, where the Full Bench would be located, and not before 11.00am AWST where it was anticipated that one or both parties would appear). Accompanying the listing were directions which, among other things, confirmed that the matter was listed for hearing in relation to permission to appeal only and required Mr Gugiatti to file and serve an outline of submissions not exceeding three pages in length addressing the requirement for permission to appeal by 5.00pm on 12 January 2016.
[49] Mr Gugiatti did not file and serve an outline of submissions in accordance with the Commission’s directions. Nor had he at any stage filed and served an appeal book in accordance with rule 56(3) of the Fair Work Commission Rules. The Commission attempted, unsuccessfully, to make telephone contact with Mr Gugiatti about his procedural failures on 13 January 2016. On 14 January 2016, after close of business, Mr Gugiatti left a voicemail message with the chambers of the presiding member of this Full Bench requesting an adjournment of the hearing on 19 January 2016. This was the first contact he had made with the Commission since his letter of 23 September 2015. In response, the presiding member’s associate sent an email to Mr Gugiatti at 8.50am on 15 January 2016 advising him that any adjournment request should be sent to the Commission by 5.00pm that day. The email also drew Mr Gugiatti’s attention to s.607 of the FW Act, which permits appeals to be determined “on the papers” without the need for a formal hearing subject to, among other things, all parties consenting to that course.
[50] At precisely 5.00pm AEDT on 15 January 2016 (a Friday), Mr Gugiatti sent to the Commission a written application for the adjournment of the hearing on medical grounds. He enclosed a medical certificate from a general practitioner which indicated that he had reviewed Mr Gugiatti on 14 January 2016 and stated:
“He describes being involved in an unfair dismissal claim recently. There has been mental health stressors recently which have impacted Matthew adversely, as such if all consideration could be given to his case including potentially delaying the hearing on Tue 19th Jan 2016.”
[51] Mr Gugiatti’s letter also contained the following statements:
“I am in the process of obtaining additional supporting medical evidence, which I will likely receive over the weekend. I will be able to provide the Commission with this evidence, a supporting affidavit explaining my circumstances and an application to progress the matter in the absence of Tuesday’s hearing, by Monday morning.
In response to the Commission’s query about hearing this matter in the absence of oral submissions, at this stage, I do not consent (for the purposes of section 607(1) of the Fair Work Act 2009) to the permission to appeal hearing being heard by way of written submissions only, without a formal hearing:
1. Because of impecuniosity, I am unable to instruct a lawyer or advocate; and
2. As a self-represented Appellant, my present ill health means that I am currently not well enough to undertake the necessary work to provide adequate substantive written submissions in relation to this matter.”
[52] It may be observed that Mr Gugiatti’s email, like his other written communications to the Commission, demonstrated him to be highly literate with a very good understanding of the procedural issues at play.
[53] Mr Gugiatti did not provide his promised affidavit on Monday 18 January 2016. The Commission advised Mr Gugiatti by voicemail message and email that day that the hearing would proceed as listed the following day at 2.00pm AEDT, 11.00am AWST.
[54] At 1.55pm AEDT on 19 January 2016 Mr Gugiatti sent an email to the presiding member’s associate stating:
“Please find attached.
Sorry for the late notice. The supporting evidence is in the form of a statutory declaration, rather than an affidavit, because I was unable to leave home today because of ill health, and I had a suitably qualified friend visit me to witness my statutory declaration.”
[55] In his attached statutory declaration, Mr Gugiatti described his mental health issues in the following terms:
“4. My mental health is presently very poor.
5. As previously provided to the FWC, I was consulting a psychologist, Mr Derek Amenkowitz.
a. On or about 8 October 2015, it became evident that a potential conflict of interest (unrelated to these FWC proceedings) existed or would exist, which may prohibit my continued treatment with Mr Amenkowitz.
i. While we attempted to ‘navigate’ the conflict so that my treatment would not be interrupted, towards the end of November 2015, it became evident that I would have to cease seeing Mr Amenkowitz.
ii. These circumstances have limited my progress/recovery.
b. For reasons associated with the abovementioned conflict (unrelated to these FWC proceedings), I had to also change General Practitioner (“GP”). This is the reason why my medical certificate dated 14 January 2016 is from a different medical practitioner, Dr Mik Parola.
i. While I have previously consulted Dr Parola, he did not have the complete and extensive history regarding my mental health issues. Accordingly, his medical certificate is limited. However, he did assess me as unwell on the date I consulted him.
ii. During my consultation with Dr Parola I undertook a further K10 test (Kessler Psychological Distress Scale), in which I scored a 44, indicating a very severe level of mental distress. A copy of this test is attached.
iii. Dr Parola has referred me to a new clinical psychologist, Dr Chris Lee (under a Mental Health Care Plan) and a psychiatrist, Dr Jane Fitch. Copies of referrals attached.
iv. I have not previously consulted a psychiatrist. Dr Parola has recommended this course of action, as I have trialled various effects, which had been managed at a GP level and likely limited my progress/recovery.
c. I confirm that I have requested an update letter from my alcohol counsellor, Ms Jill James. I am yet to receive a response to my request. Ms James is a qualified practitioner, but volunteers at Palmerston Perth and may not be able to provide her letter until later this week.
i. Notwithstanding the lack of Ms James’ letter, I have been referred to the Palmerston SMART Recovery group, as a way of progressing my recovery.”
[56] There were a number of documents from medical practitioners attached to the statutory declaration. None of these documents was in the nature of a medical certificate expressing the opinion that Mr Gugiatti was medically incapable of attending and participating in the hearing listed for 19 January 2016.
[57] Mr Gugiatti also described how he had become the primary carer of another person who had been made an involuntary hospital patient on or about 23 November 2015, for whom he was the “Nominated Person” under the Mental Health Act 2014 (WA). He said “Assisting my friend was time-consuming, exceptionally difficult and had an adverse impact on my own mental health and recovery/progress”. He also described his difficulties with osteoarthritis, and said he was waiting for arthroscopic surgery and that his first physiotherapy appointment would be later that week. He said that his “symptoms of pain and restriction of movement, are prohibitive” and had “also exacerbated my mental health symptoms”.
[58] SolarisCare attended the hearing listed at 2.00pm AEDT by videolink from Perth, although the commencement of the hearing was delayed due to the late receipt of Mr Gugiatti’s statutory declaration and the need to supply a copy of it to SolarisCare. SoliarisCare opposed the adjournment sought by Mr Gugiatti. We were not satisfied that Mr Gugiatti was medically incapable of advancing his case for permission to appeal, but his non-attendance meant that our view in that respect could not be conveyed to him at the hearing. The matter was accordingly stood over for further hearing on 12.00 noon AEDT the following day (20 January 2016). At 4.20pm AEDT the Commission sent Mr Gugiatti an email advising him of the Full Bench’s determination in this respect, and warning him that if he did not attend, the matter might be heard and determined in his absence.
[59] The hearing on permission to appeal proceeded at 12.00 noon on 20 January 2016. Mr Gugiatti did not attend. Commission staff had earlier attempted to contact Mr Gugiatti by telephone during the course of the morning, but their calls were not answered or returned. We heard submissions from SolarisCare’s legal representative, and then reserved our decision. As earlier stated, our decision refusing permission to appeal was subsequently issued on 5 February 2016.
[60] We consider that the events described above disclose that Mr Gugiatti acted unreasonably in the following respects:
(1) Having been advised on 19 October 2015 that his appeal would be listed in January 2016, and having received advice of the hearing date on 10 December 2015 and the notice of listing on 18 December 2015, Mr Gugiatti took no steps to indicate that there would be any issue with his attendance until 14 January 2016 after the Commission had made inquiries about his failure to comply with the Commission’s directions.
(2) Mr Gugiatti never filed an appeal book in accordance with rule 56(3), and never filed an outline of submissions in accordance with the Commission’s directions of 18 December 2015, and did not advance an acceptable reason for doing so.
(3) Mr Gugiatti did not make an application to adjourn the hearing listed on 19 January 2016 until 5.00pm AEDT on Friday 15 January 2016. The medical certificate advanced in support of that application did not indicate any incapacity to attend the hearing.
(4) The further material advanced by Mr Gugiatti to support his adjournment application was not sent to the Commission until five minutes before the scheduled start time of the hearing on 19 January 2016.
(5) The further material did not demonstrate that Mr Gugiatti was incapable of attending and participating in the hearing, but in any event he did not attend.
(6) Mr Gugiatti’s conduct required the hearing to be stood over until the following day, thus requiring SolarisCare’s legal representatives to attend the Commission a second time.
(7) Mr Gugiatti failed to provide any advice that he was not going to attend the hearing on 20 January 2016.
[61] We are not satisfied that Mr Gugiatti otherwise engaged in unreasonable acts or omissions as contended by SolarisCare. In particular:
(1) The merits of the grounds of appeal in the appeal notice as filed do not properly arise for consideration under s.400A. The section is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.
(2) We cannot assess Mr Gugiatti’s refusal to accept SolarisCare’s offer of settlement as unreasonable. Its letter of offer refers to an offer which Mr Gugiatti had made which it rejected. Without knowing what the terms of Mr Gugiatti’s offer was, it cannot be determined that his refusal of SolarisCare’s offer was unreasonable.
[62] It is necessary to next consider whether the unreasonable acts or omissions on the part of Mr Gugiatti which we have identified caused costs to be incurred by SolarisCare. SolarisCare has claimed all its costs for preparation for and attendance at the hearing concerning permission to appeal. We cannot characterise Mr Gugiatti’s conduct as having caused all those costs to be incurred, since SolarisCare would have had to prepare for the hearing and attend on one occasion even if Mr Gugiatti had not engaged in those acts or omissions. However, we accept that Mr Gugiatti’s conduct was the direct cause of SolarisCare having to attend the Commission on a second occasion. It also provided the substantial basis for the making of the costs application, and thereby caused the costs associated with making that application to be incurred. Therefore the discretion to order those costs under s.400A is enlivened.
[63] We consider it appropriate that SolarisCare should be ordered its costs for attendance at the second hearing on 20 January 2016 and its costs associated with making its costs application. As earlier stated, SolarisCare provided a copy of its itemised bill of costs for the appeal. Having regard to that bill, we consider it appropriate to make an order for costs in SolarisCare’s favour in the amount of $2,500.00. A separate order to that effect will be issued. 9
VICE PRESIDENT
Appearances:
E.Moran for SolarisCare Foundation Ltd
Hearing details:
2016.
Sydney:
20 January.
Final written submissions:
19 February 2016 - SolarisCare Foundation Ltd.
3 [2014] FWCFB 810 at [23]-[33]
4 [2011] FWAFB 4014, (2011) IR 174
5 Roy Morgan Research Ltd [2014] FWCFB 1175; Newbond v GM Holden Ltd [2016] FWCFB 321; Armstrong v Taxation Management Services Pty Ltd ATF TMS [2016] FWCFB 1179
6 Crouch v Commissioner for Railways (Qld.) (1985) 159 CLR 22 at 37
7 Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 at 656
8 [1998] AIRC 1206, Print Q5446 (28 August 1998)
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