Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Gregory Alan Ross
v
Bridgewood Pty Ltd
(U2020/14705)

Application for costs – s.611

Background

[1] This decision concerns an application for costs made by Bridgewood Pty Ltd (Bridgewood or the costs applicant) under sections 400A and 611 of the Fair Work Act 2009 (the Act). The respondent is Mr Gregory Alan Ross (Mr Ross or the costs respondent).

[2] The history of proceedings is complex.

[3] Mr Ross made an application under section 394 of the Act for an unfair dismissal remedy in November 2020.

[4] A hearing of Mr Ross’s application was held in March 2021 and continued on 17 June 2021. Following this the parties filed written closing submissions.

[5] After this in August 2021, Bridgewood became aware of matters that caused it to doubt the accuracy of Mr Ross’s evidence and closing submissions in early August 2021. Consequently, Bridgewood then applied to the Commission on 13 September 2021 to reopen the hearing of Mr Ross’s application in order to lead further evidence concerning his then employment status and the quantum of remuneration earned by him since the end of his employment with Bridgewood and his likely future earnings.

[6] Bridgewood’s application to reopen the hearing was opposed by Mr Ross. Consequently, the Commission convened a further hearing on 14 October 2021 to hear from the parties regarding the application to reopen the substantive hearing.

[7] On 22 October 2021, the Commission issued a decision [2021] FWC 6173 on the reopening application. The decision was that the substantive hearing would be reopened and various orders to produce documents and for witnesses to attend sought by Bridgewood were issued.

[8] A further day of hearing of the substantive application was then held in December 2021 and final written submissions were provided by both parties thereafter. 1

[9] The Commission’s decision on Mr Ross’s substantive application was issued on 1 July 2022. The decision was that Mr Ross’s annual rate of earnings was $144,749.54 which was less than the high-income threshold applicable of $153,600. Consequently, Bridgewood’s jurisdictional objection was dismissed.

[10] The decision also held that whilst there were valid reasons for Mr Ross’ dismissal, his dismissal was procedurally deficient and his dismissal was unfair. 2

[11] That decision included factual findings based on the Mr Ross’ evidence regarding the remuneration he earned after his dismissal as follows:

“[147] The applicant’s evidence is that he remained unemployed until 30 November 2020 when he was employed by Bunbury Nissan as a sales manager on a short-term contract until 31 March 2021. His salary in this job is $100,000 per annum gross being approximately $1923 per week.

[148] Subsequently it has become clear that this evidence given by the applicant about his employment post his dismissal was not correct.

[149] Following the reopening of the hearing on 3 December 2021 the Commission heard further evidence from the applicant.

[150] The applicant’s evidence at this further hearing was that on 12 November 2020 a “handshake agreement” was entered into by the applicant for him to acquire a one third share, for $400,000, of the Southwest Vehicle Group which includes Bunbury Nissan, Renault and Great Wall and Narrogin Ford, Mitsubishi and Nissan.

[151] His evidence was that on 20 November 2020 he signed a contract of employment with Southwest Vehicle Group. The applicant’s commencement date of this employment with them was 16 November 2020 and he was paid from this date onwards the salary he had previously referred to in his evidence of $100,000 per annum gross.

[152] The balance of his evidence given on 3 December 2021 concerned his purchase on 31 March 2021, through a trust established in February 2021, of 1/3 of the Southwest Vehicle Group and subsequent business dealings associated with this entity and the disbursement of future profits from this business.

[153] The respondent submits that the relevance of this further evidence is that from 30 March 2021 the applicant accrued, on an ongoing basis, remuneration and benefits referable to his employment that significantly exceeded what he would have received if his employment with the respondent had not ended on 21 October 2020.”

Footnotes omitted

[12] In this decision, the Commission’s considerations and calculations for a remedy of compensation relevantly were as follows:

“[176] If the applicant had not been dismissed when he was, the respondent could then have raised its concerns about his unsatisfactory performance with him and advised him that without immediate improvement his employment would end. Given the nature of the business and the applicant’s role, a period of 12 weeks would in my view be required to assess whether he had heeded the respondent’s concerns and for him to demonstrate improvement. This would have allowed the end of month figures for October, November and December 2020 to be taken into account.

[177] My conclusion however is that the applicant most likely would not have been able to demonstrate real business improvement to satisfy the respondent that his role as the dealer principal should not end and so he would then have been dismissed at the end of that 12-week period.

[178] Consequently, my decision is that the anticipated period of employment had the applicant not been dismissed as would be a further 12 weeks, ending on 13 January 2021.

[179] The amount of remuneration the applicant would have received for this anticipated period is 12 weeks’ pay at the rate of $2,769 per week = $33,228.

[180] Self-evidently, the applicant made appropriate efforts to mitigate his loss and did so by gaining employment shortly after his dismissal.

[181] The remuneration earned by the applicant from the dismissal date to the anticipated end of the employment on 13 January 2021 is a total of $29,999 made up of the following 5 weeks’ pay in lieu of notice at $ 2,769 per week = $13,846, plus remuneration from his new job commencing 16 November 2020 up until 13 January 2022 which amounted to 8.4 weeks’ pay at $ 1,923 per week = $ 16,153.

[182] In summary, the amount of remuneration the applicant would have received had he not been dismissed when he was is $33,228. From this is to be a subtracted the remuneration earned by the applicant up to the anticipated end of his employment which was $29,999. This leaves an amount of $3,229 compensation to be ordered.”

[13] The parties agreed that the costs application be determined on the papers.

Submissions

The costs applicant

[14] Bridgewood seeks the costs of applying to re-open its case and the costs of the reopened hearing.

[15] On 13 September 2021, Bridgewood applied to re-open its case to adduce additional evidence relating to the employment status and earnings of the Applicant following his employment by Bridgewood.

[16] On 22 October 2021, Bridgewood’s application was granted, and orders were also made requiring production of various categories of relevant documents by the Applicant and Kaitessa Pty Ltd (Kaitessa). Documents were produced by Mr Ross and Kaitessa.

[17] On 3 December 2021, the Commission heard further evidence which consisted of the further cross-examination and re-examination of the Applicant, and the tender of various documents.

[18] The further evidence relied upon by the Bridgewood was relevant to at least the question of the Applicant’s employment status and income since termination, and his likely future income for the period for which he sought compensation (the Earnings Issue).

[19] Bridgewood submits the Earnings Issue was always an issue before the Commission that would require determination if the Applicant succeeded on his claim that the dismissal was unfair.

[20] Bridgewood’s closing submissions dated 20 January 2022 set out a summary of the Applicant’s evidence on the Earnings Issue.

[21] Mr Ross’s evidence on the Earnings Issue was evidence that was wholly within Mr Ross’s knowledge and that he must have known would (or at least could) be relevant to the Commission’s determination.

[22] Further, Mr Ross must have known at the time he gave his evidence in the original hearing on 17 June 2021 at the time that he received the Bridgewood’s application to reopen, and during the reopened hearing on 3 December 2021, that his evidence regarding the Earnings Issue had not been entirely truthful or fulsome.

[23] Section 400A by its terms focuses on a party’s conduct during the proceedings and asks whether any unreasonable act or omission of a party caused the other party to incur costs (implicitly, that would not otherwise have been incurred).

[24] In the context of s611, Bridgewood submits that the word “application” need not mean the proceedings as a whole but can refer to an interlocutory application within the proceedings. That can be seen from the contrasting use of the word “matter” in subsection (1), which denotes the whole of the proceedings.

[25] Bridgewood has not been able to find any cases that consider this issue in the context of s611. However, in the costs provision contained in s570, it has been held that the word “proceeding” in that context can mean an interlocutory application within a “matter”. 3

[26] Bridgewood submits that this interpretation ought also to apply to s611, where the word in fact used is “application” which is even more apt to describe an interlocutory application within a “matter”.

[27] The provision in s611 has been described as “almost identical” in Ryan v Primesafe [2015] FCA 8 at [64] to that in s570, and the Commission should encourage consistent interpretation of the similar provisions in the Act.

[28] Bridgewood relies only on subsection 611(2)(b) insofar as it relates to the Applicant’s response to Bridgewood’s application to reopen.

[29] The relevant principles are summarised as follows in A Baker v Salva Resources Pty Ltd [2011] FWAFB 4014 at [10],

“‘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 lacking in merit or substance as to be not reasonably arguable.”

[30] In these proceedings, it is submitted Mr Ross made the following unreasonable acts or omissions in connection with the conduct of this matter:

•  first, giving evidence to the Commission in the earlier hearing that was untrue (or at least misleading) and incomplete; and

•  second, opposing the application to reopen in circumstances when the Applicant must have known that his evidence was untrue (or at least misleading) and was relevant to the outcome of the proceedings.

[31] In Armstrong v Taxation Management Services Pty Ltd (2016) 258 IR 144, it was accepted that giving false or misleading evidence could result in a costs order under s400A.

[32] Mr Ross’ unreasonable act in failing to give full and frank evidence to the Commission on a matter that was plainly relevant to Mr Ross’s claim caused the Bridgewood to incur both the costs of the application to reopen, and of the reopened hearing.

[33] Mr Ross opposed the application to reopen on the basis:

•  First, that his evidence had not been shown to be inconsistent. Given later concessions and matters revealed in cross-examination, that basis was clearly untenable, particularly where the truth was solely within Mr Ross’s knowledge;

•  Second, that the new evidence sought to be adduced regarding Mr Ross’s earnings was irrelevant to the question of whether he had been unfairly dismissed, and of minimal relevance to the question of the appropriate amount of compensation (assuming his application was upheld). Again, that argument is untenable when the difference between Mr Ross’s potential earnings had he not been dismissed, and his actual earnings following the dismissal, was the foundation of his claim for compensation. As matters transpired, because the Commission found that Mr Ross’s employment by Bridgewood was unlikely to have continued for any substantial period of time, that issue was of less significance to the ultimate outcome. However, the argument that it was “of minimal relevance” was untenable given that it was the entire foundation of Mr Ross’s claim for compensation, to which he claimed to be entitled up until July 2022 (when the cap on compensation would be exhausted); and

•  Third, that the new evidence would not be relevant to Mr Ross’s credibility. This argument was also untenable given that the application depended to a significant degree on a contest of facts between the Applicant and Bridgewood, which required evidentiary findings including findings on credibility.

[34] Mr Ross’s unreasonable failure to accept the need to reopen caused Bridgewood to incur, at the very least, the costs of the opposed application to reopen.

[35] That is sufficient to ground an order for costs under s400A.

[36] Further, Bridgewood relies on s611(2)(b), in that it should have been reasonably apparent to the Applicant that his opposition to the application to reopen had no reasonable prospect of success because his evidence regarding the Earnings Issue.

[37] The issue was both untrue or at least misleading and was clearly relevant to the issues requiring determination. None of the three bases on which the Applicant opposed the application to reopen, as set out above in paragraph 22, was reasonably arguable.

[38] Mr Ross at all times had the benefit of legal advice and ought reasonably to have understood that his opposition to the application to reopen was untenable.

Amount claimed

[39] Bridgewood has claimed costs on a party-party basis in accordance with the Schedule of Costs set out in the Fair Work Regulations.

[40] The total amount claimed up to and including the hearing of the application to reopen the matter held on 14 October 2021 and reviewing the Commission’s decision on that issue is $1,768 in costs and $7,920 in disbursements (counsel’s fees).

[41] The total amount claimed for the reopened hearing (including preparation and review of the documents produced by Mr Ross and Kaitessa) is $2,567 in costs and $14,201.69 in disbursements (counsel’s fees and the costs of personal service of the summons to attend on Mr Paul Diggins).

[42] Those costs are reasonable and calculated in accordance with the Schedule.

[43] It is submitted that Bridgewood should not have been forced to incur those costs as a result of Mr Ross’s failure to give evidence to the Commission at the first hearing that was full and frank

The costs respondent

[44] On behalf of Mr Ross, it is submitted that Bridgewood was unsuccessful in the proceedings. The dismissal was held to be unfair.

[45] Bridgewood refused to participate in conciliation because it had raised a jurisdictional objection. That jurisdictional objection failed.

[46] No evidence has been led of offers of settlement being made by Bridgewood.

[47] Bridgewood seeks to separate the proceedings into two parts. It says its costs should be paid for the second part, being the re-opened hearing (“the Re-Opened Hearing”). If successful, the net outcome would be that Mr Ross who was unfairly dismissed, would pay Bridgewood substantially more in costs than he recovered from Bridgewood by way of compensation (quite apart from the legal costs he incurred himself).

[48] The Re-Opened Hearing was unsuccessful for Bridgewood. The ultimate decision did not deal substantively with any matter that was raised in the Re-Opened Hearing, let alone find in the Bridgewood’s favour. The issues raised that were submitted by Mr Ross both before and after the Re-Opened Hearing was irrelevant. They related to business investment, not employment income.

[49] To be awarded costs pursuant to s400A, Bridgewood must demonstrate that Mr Ross caused it to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter.

[50] Section 400A is plainly directed to the way in which a matter is pursued or defended. It does not allow the Commission to separate out aspects of a party’s evidence that was incorrect and order costs specific to that evidence.

[51] The cases in which costs have been ordered are ones where the case was fatally flawed from the beginning, where offers of settlement should have been accepted or whether there was some fundamental problem with the manner in which the entire case was pursued or defended.

[52] The case relied upon by Bridgewood highlights the point. Its submissions refer to Armstrong v Taxation Management Services Pty Ltd (2016) 258 IR 144 in support of its submission that giving false or misleading evidence can justify a costs order. In that case, the applicant commenced fresh proceedings in the form of an appeal, solely in reliance on so-called ‘new evidence’ that turned out to be entirely fabricated. The circumstances could not be more different to this case, where the incorrect evidence related to irrelevant matters and had no bearing on the outcome of the case.

[53] Bridgewood seeks costs pursuant to s611.

[54] The relevant principles with respect to the substantively equivalent section 570 are per AWU v Leighton Contractors Pty Limited (No 2) [2013] FCAFC 23 at [7] as follows:

The purpose or policy of the section is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause;

A person will rarely be ordered to pay the costs of a proceeding although it is not necessary to prove exceptional circumstances;

The relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed. These principles relate to the question of whether the jurisdiction to award costs is enlivened. Even if the Court has jurisdiction to make a costs order, it retains the discretion to refrain from exercising it in an appropriate case.

[55] Bridgewood’s application for costs overlooks the fact that, in every objective sense, the application to re-open was unsuccessful. It resulted in no relevant evidence being led with such relevance or lack thereof being determined by the fact that none of that evidence affected the decision ultimately handed down by the Commission.

[56] If this were a ‘costs jurisdiction’, the costs of the application to re-open the matter would have been ‘reserved’ pending the outcome of the Re-Opened Hearing and then, having not had any bearing on the ultimate outcome, the application as a whole would have been treated as unsuccessful such that Bridgewood would be ordered to pay the Applicant’s costs, not the other way around.

[57] It is not permissible to separate out the application to re-open the matter (in which Bridgewood was successful) from the result of that application (in which Bridgewood was unsuccessful).

[58] Bridgewood was not obliged to apply for the case to be re-opened. If Bridgewood’s application for costs were successful, this would effectively mean that any time a witness makes a mistake in their evidence, the other party can expect to be paid any costs that result from that mistake. This plainly goes beyond the intention of sections 400A and 611 and is entirely inconsistent with the FWC being a ‘no-costs jurisdiction’.

[59] Re-opening a matter is an unusual application. It rarely happens. It was by no means obvious that the application would be granted – certainly not so obvious that opposing it was so unreasonable as to expose the Applicant to a costs order. As stated above, the fact that Mr Ross unsuccessfully opposed the application to re-open does not mean the defence of it had no reasonable prospects of success.

[60] It is common for witnesses to make mistakes in their evidence. It was open to Bridgewood to seek to make further submissions in response to those mistakes, which were apparent on the face of the evidence by the time the application was made.

[61] Instead, it chose to apply to re-open the hearing for another round of cross-examination. It was hoping to expose new problems with Mr Ross’s evidence with problems which had not already had been identified.

[62] In attempting to do so, it applied for a vast number of documents to be produced (and spent a vast amount of time reviewing those documents). As those documents related to a third party (Kaitessa), that third party was required to obtain its own legal representation.

[63] The costs applicant ordered a third party to attend the hearing to be cross-examined (Mr Diggins), only to decide (after making him wait outside the entire day) not to call him.

[64] Once the application was granted and the notices to produce were issued, Mr Ross fully complied and gave his evidence openly, admitting mistakes when they were put to him. Bridgewood was not successful in exposing anything other than the mistakes that had already been identified or were capable of identification at the time the application was made.

[65] The mistakes in Mr Ross’s evidence did not inexorably lead to the necessity for a new hearing. Bridgewood chose to seek a new hearing and that hearing failed to produce the new evidence it was hoping to obtain.

[66] Mr Ross also relies on written submissions made on 4 February 2022 following the re-opening of the case which are summarised as follows:

1. The majority of the new material and submissions by Bridgewood related to income that may (or may not) be received as a result of business investment.

2. Bridgewood should have known that such income is irrelevant for the purposes of calculating compensation.

[67] A major part of Bridgewood’s evidence in support of re-opening the case was the fact Mr Ross was the dealer-principal of Narrogin Mitsubishi.

[68] Ms Sydney-Smith gave evidence that:

“In my experience, the actual amount earned by dealer principals at such a dealership can often exceed $300,000 in cash plus an additional amount of approximately $50,000 as non-cash benefits (such as the vehicle usage, entertainment and superannuation).”

[69] This was despite the fact Bridgewood had been paying him only $144,000 per annum for his role as dealer-principal.

[70] The suggestion that Mr Ross should have been receiving remuneration in addition to his post dismissal salary of $100,000 was not pressed other than by way of an allegation that someone else would have had to do the work if Mr Ross did not.

[71] The evidence was Mr Ross rarely attended the Narrogin Mitsubishi premises as at the date of hearing on 3 December 2021, the last time he attended was July 2021 and that he did approximately three to four hours a week work for Narrogin Mitsubishi.

[72] The net profit for the entire Narrogin business which incorporated brands other than Mitsubishi in 2021 was $100,899.25

[73] For Mr Ross, it is submitted that the re-opening of the case uncovered two mistakes in the Applicant’s evidence – one of which could have been identified at the earlier hearings from the pre-existing evidence but otherwise achieved no traction on any of the issues upon which the application to re-open the case was based.

[74] The costs respondent argues in the alternative if the Commission considers its jurisdiction is enlivened to make a costs order, it should exercise its discretion to decline to do so or should restrict its costs order to a modest sum – in particular, one which does not, in effect, reverse the substantive outcome of the case by requiring the successful Applicant to pay more to Bridgewood than he recovered in compensation.

[75] Further, the respondent states costs should in any event be related to the application itself – which was, if looked at in isolation, successful – but should not relate to the hearing itself which was, whether looked at in isolation or otherwise, entirely unsuccessful.

Costs applicant’s reply submission

[76] Bridgewood submits in reply that it is not unusual for costs to be awarded as to part of a matter. In fact, s400 directly contemplates that course.

[77] The costs applicant submits that to suggest that Mr Ross made a ‘mistake’ in his initial evidence before the Commission is to seriously understate the deficiencies in his evidence and his non-disclosure of material matters regarding his alleged financial loss.

[78] In addition, it would not have been possible for Bridgewood to make submissions regarding those matters without the re-opening, as they were not discovered by Bridgewood until after closing submissions had been filed.

[79] The costs applicant submitted that the fact that an application to re-open may be rare is not a reason for the costs respondent to have opposed the application.

[80] They further submitted that evidence adduced in the re-opened hearing was plainly relevant to the Commissioner’s considerations even if it may have made little difference to the ultimate outcome.

[81] Finally, the costs respondent submitted that if Bridgewood is entitled to the costs of the re-opened hearing then they should not be calculated by reference to the amount recovered by Mr Ross on his substantive application. The relevant reference point is the Schedule of Costs in the Fair Work Regulations.

The legislation

[82] The relevant sections of the Act are s.400A and s.611 which are set out below.

“400A 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.

“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).”

Consideration

[83] On 13 September 2021, Bridgewood made an application to the Commission for the hearing of Mr Ross’s substantive application to be reopened.

[84] As at 13 September 2021, Mr Ross’s evidence before the Commission regarding the remuneration he had earned since his dismissal was that on 30 November 2020, he had been employed by Bunbury Nissan as a Sales Manager on a short-term contract until 31 March 2021 on a salary equating to $100,000 per annum, which at the 17 June 2021 hearing he advised was ongoing. His evidence also was that he was negotiating to buy a share of Bunbury Nissan which he advised was not complete but was underway but that as a future shareholder he will be distributed something from the trust if the business is profitable. 4

[85] The closing submissions filed on behalf of Mr Ross on 22 July 2021 reinforced this evidence.

[86] Contradicting Mr Ross’s evidence, the statutory declaration of Ms Sydney-Smith filed on 13 September 2021 with Bridgewood’s application to reopen the hearing states that Mr Ross was appointed as the Dealer Principal of Narrogin Mitsubishi on 6 April 2021 and from at least 8 April 2021 was the General Manager, Sales Manager (New Vehicle), Sales Manager (Used Vehicle) and Customer Relations Manager at Bunbury Nissan.

[87] The statutory declaration of Ms Sydney-Smith also states that on 31 March 2021, Mr Ross had become a Director of Kaitessa Pty Ltd (Kaitessa) acquiring one third of the shares. Kaitessa is the licensee of several car dealerships at Narrogin, including Mitsubishi, and several in Bunbury.

[88] It is not correct to say, as it was submitted on behalf of Mr Ross, that Bridgewood could have then addressed the apparent deficiency in the evidence Mr Ross gave on 17 June 2020 about his post dismissal work and remuneration simply by making further submissions to the Commission. Only Mr Ross could explain why his original evidence did not mention the subsequently acquired facts Ms Sydney-Smith included in her statutory declaration.

[89] Mr Ross chose to oppose Bridgewood’s application to reopen the hearing of his substantive application and consequently the Commission conducted a hearing on 14 October 2021 to determine whether or not to reopen that hearing.

[90] The Commission’s decision was to reopen the hearing and so it was that a further day of hearing was held on 3 December 2021 where Mr Ross again gave evidence.

[91] His evidence on 3 December 2021 was amongst other things that his employment commenced on 16 November 2020 (rather than 20 November 2020), and on 20 November 2020 he signed a contract of employment with Southwest Vehicle Group (rather than with Bunbury Nissan) which includes Bunbury Nissan, Renault and Great Wall and Narrogin Ford, Mitsubishi and Nissan. 5

[92] His evidence on 3 December 2021 also was that he was paid on 24 November 2020 for work he had done since 16 November 2020.

[93] He explained the background to his purchase and the negotiations whereby he became a Director and one third shareholder in Kaitessa on 31 March 2021 (rather than his purchase of a share in Bunbury Nissan being incomplete as at 17 June 2021).

[94] His evidence at the 3 December 2021 hearing also was that on 1 April 2021 he had taken up the role as dealer principal at Narrogin Mitsubishi, which had never previously been mentioned in his evidence.

[95] In addition, Mr Ross’s evidence was that in May 2021 he took over the sales and management role previously occupied by a Mr McGregor, who had been an employed member of staff responsible for the three dealerships in Narrogin. Mr McGregor had received a salary of $90,000 per annum plus incentives. None of this had ever previously been mentioned in his evidence.

[96] Mr Ross’s evidence was that also in May 2021 he took up responsibilities at the Ford dealership, filling the void left by Mr McGregor, which had never previously been mentioned in his evidence.

[97] His evidence was that had he not been working in those roles then Southwest Vehicle Group would have had to employ someone else to do all these jobs.

[98] Extensive and detailed evidence was also given by Mr Ross about various financial transactions he was involved in to acquire his one third interest in the Southwest Vehicle Group.

[99] His evidence was in the financial year ending June 2021, that business made a profit of around $850,000. He accepted that he was entitled to one third of those profits for the months of April, May and June 2021.

[100] This evidence given by Mr Ross on 3 December 2021 stands in stark contrast to the abbreviated evidence he had earlier given before the Commission on 17 June 2020 regarding the employment and work he had done and his remuneration following his dismissal.

[101] It is clear that the evidence Mr Ross gave on 3 December 2021 included a number of additional significant relevant facts that he would have known of when he gave his evidence on 17 June 2020 but failed to mention then.

[102] The significant additional evidence given by Mr Ross on 3 December 2021 was relevant to any consideration the Commission potentially may have needed to have for the amount of Mr Ross’s remuneration earned from employment or other work since his dismissal. 6

[103] Considered objectively, when Mr Ross gave his evidence on 17 June 2020, he would have known the additional evidence (which at that date he had withheld) would potentially have been relevant to the Commission’s determination of his application.

[104] The fact that the Commission’s final decision in July 2022 did not need to consider this additional evidence was not something that could possibly have been known or predicted by either Mr Ross or Bridgewood at the time he gave evidence on 17 June 2020 nor even when Bridgewood applied on 13 September 2021 to reopen the hearing.

[105] Having been served with Bridgewood’s application to reopen the hearing Mr Ross would have known that the evidence in Ms Sydney-Smith’ statutory declaration was correct and that the abbreviated evidence he gave on 17 June 2020 was incomplete and so was misleading.

[106] The Commission does not accept that Mr Ross’s failure to give full and frank evidence, prior to 3 December 2021, as to his employment or other work post dismissal and any remuneration earned, was a mistake.

[107] Mr Ross was represented by a lawyer at all times throughout the proceedings of this matter.

[108] Having received Bridgewood’s application to reopen the hearing Mr Ross had the option of providing a complete statement of evidence by sworn affidavit or statutory declaration addressing the evidence in Ms Sydney-Smith’s statutory declaration or alternatively he could have simply consented to Bridgewood’s application to reopen the hearing.

[109] Mr Ross chose instead to oppose the reopening of the hearing, causing Bridgewood to incur further costs unnecessarily in prosecuting its application to re-open the hearing. This ‘hide and seek’ approach by Mr Ross was unreasonable.

[110] Consequently, the Commission is satisfied that opposing Bridgewood’s application to reopen the hearing was an unreasonable act that unnecessarily caused costs to be incurred by Bridgewood. Bridgewood incurred further costs in preparing for and attending the hearing on 14 October 2021 to prosecute its application to reopen and afterward reviewing the Commission’s resulting decision granting the reopening of the substantive hearing.

Conclusion

[111] The Commission, pursuant to section 400A, orders that Mr Ross pay Bridgetown costs on a party-party basis being $1,768.00 costs plus $7,920.00 in disbursements being total costs of $9,688.00.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   [2022] FWC 1687.

 2   Ibid [167] to [170].

 3   Harnett Legal Services Pty Ltd v Ballantyne (No 2) [2015] FCA 1027.

 4   Applicant’s Statutory Declaration dated 10 March 2021, Transcript of 7 June 2021 PN 924 – 926, 1520 – 1525, 1555 -1566

 5   Transcript of 3 December 2021, PN 66 to 1095

 6   Fair Work Act 2009 (Cth) s392(2)(e).