1
[2012] FWA 7165 Note: An appeal pursuant to s.604 (C2013/5852) was
lodged against this decision - refer to Full Bench decision dated 4
November 2013 for result of appeal.
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Sharn Stanley
v
QBE Management Services Pty Limited T/A QBE
(U2012/5472)
COMMISSIONER JONES MELBOURNE, 12 SEPTEMBER 2012
Application for Costs Orders pursuant to s.611 of the Act
Introduction
[1] On 3 July 2012 QBE Management Services Pty Ltd (QBE) filed an application for
costs orders pursuant to s.611 of the Fair Work Act 2009 (the Act) against Ms Sharn Stanley
(the Applicant).
[2] QBE seeks costs orders against the Applicant on the following grounds:
(a) under section 611(2)(a) of the Act on the basis that the Applicant made her
Application for Unfair Dismissal Remedy vexatiously;
(b) under section 611(2)(a) on the basis that the Applicant made her Application for
Unfair Dismissal Remedy without reasonable cause;
(c) under section 611(2)(b) on the basis that it was reasonably apparent to the
Applicant that the Application had no reasonable prospects of success.
Background
[3] The relevant background to the application for costs orders can be summarised as
follows:
(a) On 28 February 2012 an application for Unfair Dismissal Remedy (Form 2) was
filed in Fair Work Australia (FWA) on behalf of the Applicant by Berrigan Doube
Lawyers (BD Lawyers);
(b) On 9 March 2012 QBE filed its response to the application for unfair dismissal
remedy (Form 3);
(c) On 20 March 2012 Conciliation was conducted by a FWA Conciliator;
(d) On 5 April 2012 the matter was listed for Arbitration on 6 - 8 June 2012;
(e) On 23 April 2012 BD Lawyers filed in FWA an Outline of Submissions and the
Applicant’s witness statement;
(f) On 3 May 2012 Minter Ellison Lawyers file a Notice of Representative
Commencing to Act (Form 53) for QBE;
AUSTRALIA FAIR WORK AUSTRALIA
http://www.fwc.gov.au/decisionssigned/html/2013FWCFB8666.htm
[2012] FWA 7165
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(g) On 7 May 2012 Minter Ellison Lawyers sent by email correspondence headed
‘Without prejudice except as to costs’ to BD Lawyers;
(h) On 16 May 2012 Minter Ellison Lawyers filed in FWA witness statements and
‘foreshadowed’ that QBE has a jurisdictional objection, and that QBE will be
seeking that the objection be determined, ‘as a preliminary matter’;
(i) On 18 May 2012 Minter Ellison Lawyers filed the Respondent’s Outline of
Submissions and further witness statements. A request was made that the
jurisdictional objection be determined as a preliminary matter;
(j) On 18 May 2012 BD Lawyers filed in FWA a Notice of Representative Ceasing
to Act (Form 54);
(k) The matter was listed for Jurisdiction Hearing on 1 June 2012;
(l) On 22 May 2012 the Applicant requested the Jurisdiction Hearing be adjourned
on the grounds that she was instructing a new lawyer and her incapacity to
represent herself due to a ‘mental condition’. This request was opposed by Minter
Ellison Lawyers;
(m) On 24 May 2012 the Jurisdiction Hearing was vacated and a Mention was listed
for 1 June 2012;
(n) On 29 May 2012 the Applicant forwarded to FWA correspondence from her
treating medical practitioner, dated 29 May 2012, regarding the Applicant’s
incapacity to ‘represent herself with respect to an unfair dismissal case’;
(o) Following the Mention, directions were issued to QBE and the Applicant
requiring each to advise whether they objected to the jurisdictional objection
being dealt with on the papers. The parties were advised that, in the absence of
agreement, the matter would be heard on 6 June 2012;
(p) On 5 June 2012, the Applicant advised Chambers she would not be attending the
hearing listed for 6 June 2012 because she had not been able to see her lawyers
and because of her medical condition;
(q) On 6 June 2012 the parties were advised that FWA would determine the matter on
the papers without the necessity of a hearing. The parties were directed to file any
further material and/or submissions by 15 June 2012;
(r) On 15 June 2012 QBE filed further material;
(s) On 21 June 2012 a Notice of Discontinuance (Form 50) was filed in FWA by the
Applicant;
(t) On 3 July 2012 QBE made an application for costs orders;
(u) On 4 July 2012 the application for costs orders by QBE was listed for hearing on
24 August 2012 (Costs Hearing). Directions were issued for the filing and
serving of submissions, witness statements and other documentary material;
(v) On 26 July 2012 the Applicant telephoned my Chambers and advised that she
would not be attending the Costs Hearing;
(w) On 7 August 2012, by email to my Chambers, the Applicant stated, ‘I have been
unwell and at this stage I will not be attending on the 24th August 2012. I will
reconfirm this closer to the date’;
(x) On 14 August 2012 the Applicant filed an Outline of Submission;
[2012] FWA 7165
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(y) On 14 August 2012, by email to my Chambers, the Applicant stated:
I will not be able to attend on the 24th August 2012, due to my health, my
doctor has advised I am in no condition and will not be able to attend, the
doctor advised it would be at least 5 weeks before I would be in any condition
to attend same.
The Applicant further stated:
I am asking that my submissions be considered in my absence. I have not asked
for an adjournment in order for this matter to be finalised.
(z) On 14 August 2012, by email from my Chambers, the Applicant was advised that
she was required to provide a medical certificate regarding her incapacity to
attend the hearing;
(aa) In response to communication (dated 16 August 2012) from Minter Ellison
Lawyers stating they would be objecting to the Applicant’s submissions ‘being
tendered or taking into account in the proceeding’, the Applicant forwarded an
email (dated 16 August 2012), to my Chambers stating:
In this case unless this is resolved prior, I will be requesting an adjournment ...
as it would not be a fair hearing to me if my submissions are not considered
because of my absence.
(bb)By email sent on 23 August 2012 at 7.50pm to my Chambers, the Applicant
requested an adjournment of the hearing listed for 24 August 2012. The
Applicant’s grounds for the adjournment referred to a Schedule of Costs QBE had
filed at 12 noon on 23 August 2012 at my direction.
Hearing
[4] Ms Raper of Counsel appeared on behalf of QBE. The Applicant did not attend the
hearing.
[5] The Applicant’s request for an adjournment was considered at the hearing and was
refused.1 The parties were advised that the hearing was confined to the question whether
FWA should exercise its discretion to order costs under s.611 against the Applicant. In
circumstances where QBE’s application was granted, a further hearing would be listed to
determine the quantum of costs.
[6] Following a consideration of an application by QBE under ss.593 and 594 as to
confidentiality, Orders were issued.
[7] Given the communications between QBE and the Applicant, set out above, it is
appropriate to set out the material I have had regard to in this decision:
(a) QBE’s Outline of Submissions filed on 18 May 2012 and 20 July 2012;
(b) Annexures to the Witness Statements of Adam Daniels, Martin Webb and
Michael Vella filed by QBE on 16, 17 and 18 May 2012 respectively and
Geoffrey Burnett Brown filed on 23 August 2012;
(c) The Applicant’s Outline of Submissions filed on 23 April 2012 and 14 August
2012 and the Applicant’s witness statement filed on 23 April 2012;
(d) Documents produced to FWA in accordance with various Orders issued under
s.596(2) of the Act by the Commonwealth Bank Australia, Community First
Credit Union Limited, Westpac Banking Corporation, Insurance Australia Group
[2012] FWA 7165
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Limited, Citigroup Pty Ltd, LabourPower Recruitment Services, IBM Limited,
NSW Police Force, Guild Insurance Ltd and Specialty Fashion Group; and
(e) The oral submissions of QBE at the Costs Hearing.
Legislation
[8] S.611 of the Act provides:
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before
FWA.
(2) However, FWA may order a person (the first person) to bear some or all of
the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the
first person responded to the application, vexatiously or without
reasonable cause; or
(b) FWA 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.
(3) A person to whom an order for costs applies must not contravene a term of
the order.
[9] S.402 of the Act provides that an application under s.611 must be made within 14 days
after FWA determined the matter or the matter is discontinued. QBE filed its applications
under and s.611 within 14 days after the Applicant filed Form 50.
S.611 - the Authorities
[10] The general rule in proceedings before FWA is that each party bears their own costs:
s.611(1). However, FWA may exercise its discretion to order a party to bear some or all of
another person’s costs where it is satisfied that specified circumstances exist. QBE rely on all
the circumstances specified in s.611(2).
S.611(2)(a): Vexatious or Without Reasonable Cause
Vexatious
[11] The approach to the question whether a proceeding has been instituted vexatiously is
well settled. Litigation may be regarded as vexatious on either objective or subjective
grounds.2
[12] Proceedings are vexatious if:3
(a) They are instituted with the intention of annoying or embarrassing the person
against whom they are brought.
(b) They are brought for collateral purposes, and not for the purpose of having the
court adjudicate on the issues to which they give rise.
[2012] FWA 7165
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(c) Irrespective of the motive of the litigant, they are so obviously untenable or
manifestly groundless as to be utterly hopeless.
[13] In Re Cameron,4 Fitzgerald P stated, in relation to an application to have an applicant
declared a vexatious litigant under the applicable Queensland statute:5
It is also necessary to decide what makes legal proceedings vexatious. Although there
are sometimes statutory indications, the broad test potentially concerns such factors
as the legitimacy or otherwise of the motives of the person against whom the order is
sought, the existence or lack of reasonable grounds for the claims sought to be made,
repetition of similar allegations or arguments to those which have already been
rejected, compliance with or disregard of the court’s practices, procedures and
rulings, persistent attempts to use the court’s processes to circumvent its decisions or
other abuse of process, the wastage of public resources, and funds, and the
harassment of those who are the subject of the litigation which lacks reasonable basis:
see, for example, Attorney-General (N.S.W.) v. Wentworth (1988) 14 N.S.W.L.R. 481;
Jones v. Skyring [1992] HCA 39; (1992) 66 A.L.J.R. 810; Jones v. Cusack [1992]
HCA 40; (1992) 66 A.L.J.R. 815, and Attorney-General (N.S.W.) v. West (N.S.W.
Common Law Division No. 16208 of 1992, 19 November 1992).
Without Reasonable Cause
[14] The authorities on the approach to be taken to the phrase ‘without reasonable cause’
were considered in Hamilton James & Bruce Pty Ltd v Gray (Gray):6
[18] The phrase “without reasonable cause” was considered in Kanan v Australian
Postal and Telecommunications Union. Section 347(1) of the then Industrial Relations
Act 1988 (Cth) provided that:
“A party to a proceeding (including an appeal) in a matter arising under this
Act shall not be ordered to pay costs incurred by any other party to the
proceeding unless the first-mentioned party instituted the proceeding
vexatiously or without reasonable cause.” (Underlining added)
[19] In Kanan’s case, Justice Wilcox said in respect of the phrase that:
“A proceeding is not to be classed as being launched ‘without reasonable
cause’ simply because it fails. As Gibbs J said in R v Moore; Ex parte
Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at
473, speaking of the Conciliation and Arbitration Act equivalent of s 357 (s
197A):
‘... a party cannot be said to have commenced a proceeding “without
reasonable cause”, within the meaning of that section, simply because
his argument proves unsuccessful. In the present case the argument
presented on behalf of the prosecutor was not unworthy of
consideration and it found some support in the two decisions of this
court to which I have referred. The fact that those decisions have been
distinguished, and that the argument has failed, is no justification for
ordering costs in the face of the prohibition contained in s.197A.’
In Standish v University of Tasmania (1989) 28 IR 129 at 139 Lockhart J
applied the qualification in ordering costs against an applicant whose case he
thought ‘misconceived’, rather than simply unsuccessful. But, as the Full
Court pointed out in Thompson v Hodder (1989) 29 IR 339 at 342, ‘there may
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281989%29%2029%20IR%20339
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%2066%20ALJR%20815
http://www.austlii.edu.au/au/cases/cth/HCA/1992/40.html
http://www.austlii.edu.au/au/cases/cth/HCA/1992/40.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%2066%20ALJR%20810
http://www.austlii.edu.au/au/cases/cth/HCA/1992/39.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281988%29%2014%20NSWLR%20481
[2012] FWA 7165
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be cases which could not be described properly as “misconceived” but which
would nevertheless be held to have been instituted without reasonable cause’.
It seems to me that one way of testing whether a proceeding is instituted
‘without reasonable cause’ is to ask whether, upon the facts apparent to the
applicant at the time of instituting the proceeding, there was no substantial
prospect of success. If success depends upon the resolution in the applicant’s
favour of one or more arguable points of law, it is inappropriate to stigmatise
the proceeding as being ‘without reasonable cause’. But where it appears that,
on the applicant’s own version of the facts, it is clear that the proceeding must
fail, it may properly be said that the proceeding lacks a reasonable cause.”
(Endnote omitted)
[15] In Council of Kangan Batman Institute of Technology and Further Education v
Australian Industrial Relations Commission,7 the Full Court of the Federal Court when
considering the term ‘without reasonable cause’ in the general costs provision (s.347) of the
WR Act8 stated:
“60. The question therefore arises whether, as contended by counsel for Ms Hart, the
plaintiff instituted the proceeding vexatiously or without reasonable cause. A party
does not institute proceedings without reasonable cause merely because that party
fails in the argument put to the Court: R v Moore; Ex parte Federated Miscellaneous
Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J. The section
reflects a policy of protecting a party instituting proceedings from liability for costs,
but that protection may be lost. Although costs will rarely be awarded under the
section and exceptional circumstances are required to justify the making of such an
order (see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 per Northrop J), a
proceeding will be instituted without reasonable cause if it has no real prospects of
success, or was doomed to failure: see Kanan v Australian Postal and
Telecommunications Union (1992) 43 IR 257 per Wilcox J; see also Bostik (Aust) P/L
v Gorgevski (No 2) (1992) 36 FCR 439; and Nilsen v Loyal Orange Trust (1997) 76
IR 180.
...
63. It is a matter of judgment, sometimes of fine judgment, in all the circumstances of
a particular case whether a proceeding is brought without reasonable cause.”
S.611(2)(b): Reasonably apparent, no reasonable prospect of success;
[16] In relation to s.611(2)(b), the Full Bench in Baker v Salva Resources Pty Ltd (Baker),9
stated (endnotes 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:
“should have been reasonably apparent” must be objectively determined. It
imports an objective test, directed to a belief formed on an objective basis, rather
than a subjective test; and
a conclusion that an application “had no reasonable prospect of success” should
only be reached with extreme caution in circumstances where the application is
manifestly untenable or groundless or so lacking in merit or substance as to be not
reasonably arguable.
[17] Similarly, in Gray,10 a Full Bench observed (endnotes omitted):
[2012] FWA 7165
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[20] The phrase “no reasonable prospect of success” in the context of costs
applications was considered by a Full Bench of the Australian Industrial Relations
Commission (AIRC) in Deane v Paper Australia Pty Ltd. In that decision the Full
Bench said:
“[5] It was not disputed that for the purposes of s.170CJ(1)(a)(ii) the appeal
instituted by the applicant was a proceeding begun by him. The question is
whether he did so in circumstances where it should have been reasonably
apparent to him that there was no reasonable prospect of success. If that
question is answered in the affirmative the Commission is able to make an
order for costs against him. Whether it should do so is a separate although
closely related question which requires a separate exercise of discretion.
[6] We were taken to a number of authorities which were said to bear upon the
construction of s.170CJ. None of those authorities deals with the operative
expression which now appears in s.170CJ(1)(b), namely: ‘no reasonable
prospect of success’.
[7] The expression ‘no reasonable prospect of success’ also appears in
ss.170CF(2)(d), 170CF(3)(b) and 170CF(4). Section 170CF(4) provides for
the summary dismissal of an application for relief pursuant to s.170CE, by the
issue of an appropriate certificate, if the Commission concludes that the
application has no reasonable prospect of success. The construction of the
expression in that context was considered by a Full Bench of the Commission
in Wright v Australian Customs Service. In that case the Full Bench, drawing
upon relevant authority relating to summary dismissal of proceedings in
various jurisdictions, held that a conclusion that an application had no
reasonable prospect of success should only be reached with extreme caution
and where the application is manifestly untenable or groundless.
[8] Making due allowance for the caution which must attend the exercise of a
discretion to summarily dismiss an application, it appears to us that the
approach in Wright is one we should follow. In other words, unless, upon the
facts apparent to the applicant at the time of instituting the appeal, the
proceeding in question was manifestly untenable or groundless, the relevant
requirement in s.170CJ(1) is not fulfilled and the discretion to make an order
for costs is not available.”
[21] In Smith v Barwon Region Water Authority, a Full Bench of the AIRC in
considering the phrase “no reasonable prospect of success” in the context of s.650 of
the Workplace Relations Act 1996 (Cth) (WR Act) concerning AIRC advice to the
parties about an application for relief in respect of termination of employment said:
“[48] Having regard to the authorities ... it seems to us that an application
will have no reasonable prospects of success if it is so lacking in merit or
substance as to be not reasonably arguable.”
[18] It is relevant that French CJ and Gummow J in Re Spencer,11 in considering the
genesis of the criterion ‘no reasonable prospect of success’ observed it would include a case
in which there is unanswerable evidence of a fact fatal to the pleaded case.12
[19] It is clear from the express term of s.611(2)(a) which speak of a person who ‘made the
application’ that the reference point for deciding whether s.611(2)(a) is satisfied is the point at
which the application is made.
[2012] FWA 7165
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[20] In my opinion s.611(2)(b) is not so constrained. Whilst the subsection refers to a
person who ‘should have been’, this use of past tense is a reference to the steps in the
proceeding up until the matter is determined or discontinued.13 The words of s.611(2)(b) do
not limit the test to the making of the application. The subsection includes in the conduct to be
examined a ‘response to the application’. Clearly, s.611(2)(b) cannot be limited to the time at
which the application is made but applies in the course of proceedings until the time at which
the matter is determined by FWA or discontinued.
[21] The issues to be determined are:
(a) Whether the Applicant made the application vexatiously; or
(b) Whether the Applicant made the application without reasonable cause; or
(c) Whether it should have been reasonably apparent to the Applicant that her
application has no reasonable prospect of success;
(d) If a positive finding is made in respect of any or each of (a), (b) or (c), whether an
Order for costs should be made; and
(e) If FWA decides to award costs, the amount of the costs and whether they should
be on a party/party or indemnity basis.
Submissions
[22] QBE submits that it is integral to their Application for costs orders that the Applicant
has surrendered rather than because of some supervening event.14 QBE submit the Applicant
has discontinued because of difficulties she always faced:15
namely that she didn’t meet the threshold test associated with the six month minimum
employment period; secondly that she committed serious misconduct by defrauding
QBE and by virtue of that we say it could never have been possibly conceived that any
procedural unfairness argument that falls into the mix associated with the
determination of this Tribunal of the issue16
[23] QBE’s submissions in respect of s.611(2)(a) and (b) can be summarised as follows:
(a) The application was made vexatiously because it was brought with the intention
of harassing QBE and its employees and because the Applicant knew she
committed fraud;
(b) The application was made without reasonable cause because the Applicant did not
satisfy the jurisdictional requirements under s.382 as she was not employed for 6
months by QBE and because she defrauded QBE of more than $350,000. The
Applicant was given an opportunity to respond to the allegation before she was
summarily dismissed. These facts, QBE asserts, were clear and incontrovertible
evidence, fatal to the application and plainly known to the Applicant; and
(c) It was reasonably apparent to the Applicant that she had no reasonable prospect of
success throughout the proceedings. QBE rely on the basis set out in (b) above. In
this respect QBE identify, in the alternative, three points of time beyond the time
the Applicant made the Application when this criteria was satisfied:
9 March 2012, when the Form 3 was filed;
7 May 2012, being the date of the costs letter; and
18 May 2012, when QBE filed its Outline of Submission and witness
statements.
[2012] FWA 7165
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Evidence
[24] The evidence before FWA will be dealt with under three general headings which flow
from the basis upon which QBE puts its application for costs orders. These are harassment,
minimum employment period and the fraud allegations.
Harassment
[25] QBE rely on emails sent by the Applicant to Mr Darren Bickham, Human Resource
Manager, on 16 and 17 February 2012 which are described by QBE as harassing,17 emails
sent by the Applicant to Minter Ellison in the period 18 to 20 June 201218 and text messages
sent to QBE employees.19
Minimum Employment Period
[26] In the Form 2, the Applicant’s period of employment with QBE is specified as 17 June
2011 to 15 February 2012. In its Form 3, QBE specified that period as 29 August 2011 to 15
February 2012. QBE submit that prior to 29 August 2011, the Applicant was engaged by
labour-hire companies, PorterAllen and Talent Care Services (TCS), and prior to 29 August
2011, PorterAllen and TCS provided the Applicant’s services to QBE.
[27] QBE relies on the following documentary material:
(a) Emails sent on 14 March 2012 by the Applicant to her then lawyers, BD Lawyers;
(b) Employment contract signed with PorterAllen on 8 February 2011;
(c) Bank statements of accounts held in the Applicant’s name disclosing amounts
deposited by PorterAllen and TCS up until 29 August 2022;
(d) Assignment Schedule from TCS to the Applicant (undated); and
(e) Time sheets completed by the Applicant on PorterAllen and TCS letterheads.
[28] The Assignment Schedule from TCS to the Applicant which is undated refers to the
client as QBE and a start and end date for the assignment from 25 July 2011 to 17 December
2011. The statements for an account in the Applicant’s name produced by IMB Banking and
Financial disclose that payments were made to the Applicant by PorterAllen until the end of
July 2011.20 The statements for an account in the Applicant’s name produced by Community
First Credit Union disclose payments made to the Applicant by TCS up until 24 August 2011,
following which payments are made by QBE.21
[29] In an email dated 14 March 2012 to her then lawyers, the Applicant said:
“17th June 11 paid by PorterAllen as a contractor
May 12 employed and paid by QBE as a contractor
Sept 11 was put on new contract which included holidays etc”
[30] On 17 August 2011, the Applicant was offered a ‘Full-Time Appointment - Claims
Officer’. The letter of offer stated in part:
“Further to our recent discussion, on behalf of QBE Management Services Pty
Limited (QBE), I am very pleased to confirm your continued employment and your
appointment to the full-time position of Claims Officer.
This letter should be read in conjunction with the attached Schedule. These documents
together constitute your contract of employment with QBE.”
Commencement
[2012] FWA 7165
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This contract commences 29 August 2011 and will continue until terminated or
otherwise varied in accordance with this contract. From the date of commencement,
this contract supersedes and replaces all previous contracts and arrangements in
relation to your employment with QBE. Recognition of your prior service with QBE
and accrued but untaken entitlements are not affected by this contract.
The Fraud Allegations
[31] The documentary material QBE relies on in relation to its allegation is set out below. It
is to be noted the substance of this factual material was referred to by QBE in their costs letter
(dated 7 May 2012) and is set out in detail in QBE’s Outline of Submission and witness
statements filed between 16 - 18 May 2012.
[32] It must be emphasised that, in considering the factual material, I am not making any
findings as to whether the Applicant engaged in the conduct alleged by QBE, rather, I am
directing myself as to whether I can be satisfied, having regard to the material and the
Applicant’s written submissions (see [7]), that:
The Applicant made the application vexatiously or without reasonable cause
(s.611(2)(a)); or
It should have been reasonably apparent to the Applicant that her application
has no reasonable prospect of success (s.611(2)(b)).
[33] The documentary material is as follows:
(a) Numerous transactions for various insurance claims made over the period
September 2011 to February 2012 which were not authorised (unauthorised
transactions). These are summarised in a spreadsheet which sets out:
The date of the transaction and policy number;
The amount of the transaction;
The bank account that the payments went into;
The claims officer responsible for the transaction; and
The email address that the remittance notice was sent to.22
(b) The Applicant is listed as the policy officer responsible for most of the
transactions;
(c) The unauthorised transactions were deposited in various Commonwealth Bank
Accounts23 and a Citibank Account (the Citibank account);24
(d) The record of the Citibank Account discloses the account is in the Applicant’s
name, and a residential address,25 which accords with the Applicant’s residential
address recorded on FWA files in this matter. The copy of the application filed for
the purpose of opening the account is in the Applicant’s name and records the
Applicant’s residential address;26
(e) The CBA accounts are in the name of a person who will be referred to as ‘Sarah
P’ (Sarah P CBA Accounts). The postal addresses for each of the Sarah P CBA
Accounts27 are the same postal address for an account, a Community First Bank
Account in the Applicant’s name, into which QBE deposited the Applicant’s
salary;28
[2012] FWA 7165
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(f) The Citibank Account was opened on 18 August 2011. Four of the unauthorised
transactions were deposited in the Citibank account as follows:
On 5 October 2011 a payment was processed29 in the amount of
$7,073.80, being one of 18 transactions of that same amount to a
named payee, ‘Mr M’. This transaction was deposited in the Citibank
account on 10 October 2011.30 Sixteen (16) of the transactions of the
same amount were deposited in one of the Sarah P CBA Accounts;31
On 17 and 19 October 2011, two payments were processed32 in the
amount of $3,198.00, being two of five transactions of that same
amount to a named payee, ‘Mr M’. These two transactions were
deposited in the Citibank account on 20 and 24 October 2011
respectively.33 Three of the transactions of the same amount
($3,198.00) were deposited into the Sarah P CBA Accounts;34
On 24 October 2011 a payment was processed35 in the amount of
$5,938.45, being one of six transactions of that same amount to a
named payee, ‘Mr M’. This transaction was deposited in the Citibank
account on 27 October 2011.36 The remaining five transactions of the
same amount ($5,938.45) were deposited in the Sarah P CBA
Accounts;37
(g) The remittance notices for the unauthorised transactions were mainly sent to an
email address, ‘r...@gmail.com.au’.38 An email was sent from the Applicant’s
QBE email address to r...@gmail.com.au on 29 September 2012.39 This email
attached a number of documents including a Community First Bank, ‘Full
Transaction History document’. The name on the transaction attached to the email
is ‘Ms Sarah P’. The account number specified on the Full Transaction History is
identical to the member number of the Community First Bank into which QBE
deposited the Applicant’s salary;40
(h) One of the remittance notices was sent to the Applicant’s QBE email address;41
(i) The Applicant sent numerous emails to Sarah P in the course of her employment
with QBE.42 The content of the emails are of a personal nature;
(j) On 15 December 2011 a payment of $15,000 was made from one of the Sarah P
CBA Accounts to a Westpac Mastercard account number ...044 held in the name
of Mr E Stanley.43 Mr Stanley’s residential address recorded on the account is the
Applicant’s residential address. The amount was deposited on 15 December
2011;44
(k) Records from an online fashion retailer, Specialty Fashion Group, disclose that an
online account existed in the Applicant’s name, with the Applicant’s residential
address45 (as recorded in the FWA file) with an email address which is identical to
the email address for the Applicant recorded in the FWA file. On 6 November
2011, goods valued at $704.60 were purchased using the online account46 and
paid for from one of the Sarah P CBA Accounts.47 The delivery address for this
order was the Applicant’s residential address. On 16 November 201148 and 3
January 201249 some of the goods purchased on 6 November 2011 were refunded
by Specialty Fashion with the refund payments paid into the Sarah P CBA
Accounts on 18 November 201150 and 5 January 2012;51
mailto:r...@gmail.com.au
[2012] FWA 7165
12
(l) On 15 December 2011, a deposit of $10,000 was made into the Citibank
account.52 The deposit is recorded as a direct credit from a name including the
names Sarah P. On 16 December 2011, a net bank transfer of $10,000 was made
from one of the Sarah P CBA Accounts;53
(m) On 16 December 2011, a deposit of $700 was made in the Citibank account.54 The
deposit is recorded as a direct credit from a name including the names Sarah P. On
16 December 2011, a net bank transfer of $700 was made from one of the P CBA
Accounts;55
[34] QBE also rely on previous convictions on 9 May 2011 against the Applicant for
obtaining money by deception and, dishonestly obtaining financial advantage by deception for
which the Applicant received suspended sentences. I have disregarded this material for the
purpose of determining this application.
Applicant’s Submissions
[35] In her written submissions, the Applicant states in respect of the fraud allegations:
(a) She has not been a Citibank customer for over 7 years. ‘The account you state is
mine is not and is under investigation by the relevant authorities’;
(b) She did not have authority to authorise payments. The authority rested with
management;
(c) Some of the list of payments made were made on weekends and days the
Applicant was not working;
(d) She was not working on the day she is alleged to have sent the email to
r...@gmail.com.au email address;
(e) She has not been charged or questioned in relation to allegations made, by police
or any other authority.
[36] In her witness statement filed for the purpose of the substantive hearing,56 the
Applicant described an interview conducted on the day she was summarily dismissed (15
February 2012). Her description of the matters canvassed by QBE representatives referred to
questions as to:
(a) Whether she was a holder of Commonwealth Bank Account which it was alleged
duplicate payments were made into. This was denied by the Applicant;57
(b) Whether she knew a person, whose name appeared on the r...@gmail.com.au
address. This was denied by the Applicant;58
(c) Whether she knew a person, ‘Sarah P’. The Applicant said she did not know a
Sarah connected with this.59
[37] The Applicant stated she only had two bank accounts, one with Community First
Credit Union, the other with IMB.60
Consideration
Harrasment
[38] I am not satisfied that any of the material relied on by QBE amount to harassment. The
emails to the Human Resource Manager are in reality communication by an employee, clearly
upset, about her rights. The emails to Minter Ellison and texts to QBE employees are to be
mailto:r...@gmail.com.au
mailto:r...@gmail.com.au
[2012] FWA 7165
13
seen in context; namely, attempts by QBE to ascertain details of and attendance by QBE
employees at court proceedings the Applicant was involved in.
[39] It follows that I am not satisfied that the Applicant made the application vexatiously
on the basis of this material. I deal with the question as to whether the application was
obviously untenable below.
Minimum Employment Period
[40] I am not satisfied, with respect to the jurisdictional issue based on the minimum
employment period, that the Applicant made the application without reasonable cause or that
it was reasonably apparent to her she had no reasonable prospect of success, for the reasons
set out below.
[41] The email from the Applicant to her lawyers exposes confusion on the Applicant’s
part as to the details of her employment arrangements.
[42] Balanced against the evidence of the labour hire companies making payments into her
bank accounts is the wording of the contract offered to the Applicant on 17 August 2011 by
QBE which in its term is suggestive of an ongoing employment relationship prior to that date.
[43] I take notice of the fact that it is not uncommon for Applicant’s to confuse labour hire
arrangements with a client as being an employment relationship with the clients.
[44] It is relevant that QBE did not raise the Applicant’s employment period as a
jurisdictional issue until sometime after the Applicant’s application for unfair dismissal
remedy had been filed.
[45] I am not satisfied that the Application was so obviously untenable when the Applicant
made the application. Nor am I satisfied that on the Applicant’s version of the facts, it was
clear the proceedings must fail.
[46] There in an obligation on a Respondent, who wishes to raise a jurisdictional objection
to do so at the earliest time so that costs are not incurred in preparing for a substantive
hearing. QBE is not a small employer and one could expect it to have access to specialist and
dedicated human resource management which would have the knowledge and expertise to
identify jurisdictional bars to FWA dealing with an unfair dismissal claim.
[47] It is true that in the Form 3 QBE completed it recorded an employment period for the
Applicant of less than 6 months. However, it failed to press, what is said on its behalf in
submission an obvious issue, by the completion and filing of a Form 4 - Objection to
Application for Unfair Dismissal Remedy - or at Conciliation. The jurisdiction issue was
‘foreshadowed’ in correspondence sent by QBE’s lawyers to the Applicant’s then lawyers (16
May 2012) and expressly in QBE’s Outline of Submission filed on 18 May 2012. A request
was made to have the jurisdictional matter determined first.
[48] I have had regard to the fact that, after 18 May 2012, the Applicant was unrepresented.
I accept there were references made by the Applicant in her email correspondence, after this
time, to the fact she was instructing new lawyers61 which took some time to eventuate.
However, the fact is the Applicant remained unrepresented after 18 May 2012.
[49] I am also satisfied and have regard to the fact that it was not until the Mention
conducted by FWA on 1 June 2012 that it was reasonably apparent to the Applicant there was
an issue that would have the effect, if successfully prosecuted by QBE, of defeating her claim,
irrespective of the merits.
[2012] FWA 7165
14
[50] Although the jurisdictional objection was raised by QBE in its Outline of Submission
on 18 May 2012, the evidentiary basis of the jurisdictional objection was set out in detail in
QBE’s submission on the jurisdictional question filed on 15 June 2012.
[51] I am satisfied that having read this submission it would have been reasonably apparent
to the Applicant that she had no reasonable prospect of success.
[52] The Applicant filed a Notice of Discontinuance on 21 June 2012.
Fraud allegation
[53] I am not satisfied that on the Applicant’s own version of the facts it was clear the
proceeding must fail: see Kanan’s case (supra).
[54] I note that the Applicant has and continues to deny any allegation of fraud and has, in
her written submissions, denied that the Citibank account is her account. It is relevant that
there have not been any findings of fact by FWA or Court on this issue.
[55] Whilst the Applicant has not provided any evidence or further material to FWA which
would in some way fortify her version as to the ownership of the Citibank account, on balance
I find her application for unfair dismissal remedy was not made without reasonable cause.
[56] I am, however, satisfied having regard to the documentary material that it was
reasonably apparent to the Applicant that she has no reasonable prospect of success and that
this circumstance applied at the time the Applicant made her application.
[57] I have had regard to the fact that, particularly where there has been no finding in FWA
or other jurisdictions, a conclusion that the Applicant had no reasonable prospect of success
must be exercised with extreme caution. However, in this case the documentary material
relied on by QBE and set out in detail at [33] above falls, in my opinion, within the concept of
unanswerable evidence of facts fatal to the Applicant’s case (see Re Spencer (supra)).
[58] True it is that the Applicant, in her written submissions, has denied the Citibank
account is hers. However, the test is an objective test, directed to a belief formed on an
objective basis (see Baker (supra)). The Applicant has not provided evidence of any kind of
any investigation into identity fraud. Further, her failure to attend the costs hearing and
provide evidence as to the basis for her denial means that the question as to whether her belief
that the Citibank account is not hers was reasonable, in the face of a detailed body of
documentary material to the contrary,62 remain untested. The Applicant’s denials are no more
than an assertion of a subjective belief.
[59] It is to be noted that the Applicant did not refute, in her written submission that there
existed a relationship between her and the person identified in this decision as Sarah P nor
address factual material regarding the deposits made from the Sarah P CBA account into the
Applicant’s Community First Credit Account.
[60] It is significant that the Applicant, in an interview with QBE on 17 February 2012 and
in her witness statement filed on 23 April 2012, denied knowledge of Sarah P. Clearly, having
regard to the emails and financial transactions between the Applicant and Sarah P, this denial
is baseless.
[61] It is incontrovertible that the Applicant and Sarah P had a personal relationship as
evidenced by the numerous emails and the content of those emails between the two, and the
payments from Sarah P CBA Accounts to the Applicant. On the documents available it can be
concluded these facts were known to the Applicant at the time she made her application.
There is also no doubt that the post office box address for the Sarah P CBA Accounts and the
[2012] FWA 7165
15
Applicant’s Community First Credit Account are the same and that numerous unauthorised
payments were made into the Sarah P CBA Accounts.
[62] There is then the issue of the Applicant’s knowledge of, or relationship with, the email
address identified in this decision as r...@gmail.com.au. The Applicant denied in her written
submission that she was at work on the day the documents show an email was sent from the
Applicant to r...@gmail.com.au. In response, QBE filed in FWA a copy of a screen dump of
records of leave taken by the Applicant for the period 17 June 2011 to 15 February 2012. This
does not record leave taken by the Applicant on 29 September 2011.63
[63] Also filed were a copy of records of the Applicant’s pay slip for the week ending 30
September 2011, which is said to show that the Applicant worked her full 72.5 hours for the
fortnight ending 30 September 2011 and copies of emails sent by the Applicant under her
QBE email address to other recipients (including clients and other employees) dated 29
September 2011. These disclose that, at the very least, the Applicant had access to her QBE
email address on that day.
[64] I am not satisfied that the Applicant has or had a reasonable belief or an objective
basis for her written submission that the Citibank account is not hers. In addition, it is clear
the Applicant was not truthful in the interview with QBE on 5 February 2012 and in her
witness statement filed on 23 April 2012, when she denied knowing a Sarah P.
[65] The consequence is that the fact of the deposits of large sums of unauthorised
transactions into the Citibank account and the transfer of monies from Sarah P’s CBA
Accounts into accounts held by the Applicant and into the Citibank account, renders in my
opinion, the application for unfair dismissal remedy so lacking in merit or substance so as to
be not reasonably arguable. I agree with QBE that any deficiencies in procedure could never
overcome the incontrovertible documentary evidence.
[66] I am satisfied that it was reasonably apparent to the Applicant at the time she made her
application, that there was no reasonable prospect of success. I am further satisfied that in the
circumstances of this case I should exercise my discretion under s.611 of the Act by
determining that the Applicant must bear the costs incurred by QBE from the date she made
her application, 28 February 2012.
[67] I defer the question of the quantum of costs to be ordered for further a hearing. QBE
submit that any costs should be on an indemnity basis. Given the failure of the Applicant to
attend the hearing and my decision to refuse the Applicant’s adjournment, the question
whether costs should be awarded on an indemnity basis is also deferred for a further hearing.
Conclusion
[68] For the reasons set out in this decision, I have decided that a Costs Order shall be
issued, ordering the Applicant to pay the costs of QBE from 28 February 2012.
[69] The quantum of costs to be awarded and the question of whether costs should be
awarded on an indemnity basis shall be determined following a further hearing before FWA.
Directions for this hearing will be issued shortly.
COMMISSIONER
Appearances:
NORA AUSTRALIA ones SEAL OF FAIR AUSTRALIA, THE/S
[2012] FWA 7165
16
Ms E. Raper of Counsel - QBE Management Services Pty Ltd
Hearing details:
2012
Melbourne
August, 24
Printed by authority of the Commonwealth Government Printer
Price code C, PR528177
1 Transcript of Hearing, 24 August 2012 at PN223 - PN225.
2 Attorney General v Wentworth (1988) 14 NSWLR 981 at 491.
3 Ibid.
4 (1996) 2 Qd R 218
5 Vexatious Litigants Act 1981, s.3 required a Court to be satisfied that a person ‘has frequently and without reasonable
ground instituted vexatious legal proceedings’.
6 [2011] FWAFB 9235.
7 [2006] FCAFC 199, 160 IR 405, 415-416, per Black CJ, North & Mansfield JJ.
8 S.347 (Costs only where proceedings instituted vexatiously etc.) included:
‘(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section
170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party
instituted the proceeding vexatiously or without reasonable cause.’
9 [2011] FWAFB 4014 at [10].
10 [2011] FWAFB 9235.
11 Spencer v Commonwealth [2010] 241 CLR 118.
12 Ibid at 131.
13 Cf Kerr v Peacock Films Pty Limited [2011] FWA 3766 at [10].
14 See One.Tel Ltd & Ors v Commissioner of Taxation [2000] FCA 270.
15 Ahmetaj v Minister for Immigration & Multicultural Affairs [1999] FCA 332.
16 Transcript of Hearing - 24 August 2012 at PN 281.
17 QBE’s Book of Documents at p.1 - 18.
18 Ibid at p.600-602, 636, 725 and 748.
19 Ibid at p.91, 730.
20 Ibid at p. 666.
21 Ibid at p. 695.
22 Ibid, Tab 13 at p. 69-70.
23 The account numbers redacted to preserve confidentiality are:
Account numbers ...616, Ibid at p. 475-481; ...765, Ibid at p. 455-462; ...652, Ibid at p. 463-474.
24 Account number ...521, Ibid at Tab 20. .
25 Ibid at p.100.
26 Ibid at p. 122.
27 Ibid, Tab 22 at p. 455.
28 Ibid, Tab 42 at p. 695.
29 Ibid, Tab 13 at p. 69.
30 Ibid, Tab 20 at p. 105.
[2012] FWA 7165
17
31 Ibid, Tab 13 at p. 69.
32 Ibid at p.70.
33 Ibid, Tab 20 at p. 106.
34 Ibid, Tab 13 at p. 70.
35 Ibid.
36 Ibid, Tab 20 at p. 107.
37 Ibid, Tab 13 at p. 70.
38 Ibid at p.69 - 70.
39 Ibid at p.73.
40 Ibid.
41 Ibid at p.70.
42 Witness statement of Adam Daniels, filed on 16 May 2012, Annexures AD - 5, AD - 7 and AD - 9.
43 Ibid, Tab 21 at p.357.
44 Ibid at p.358.
45 Ibid, Tab 19 at p. 94.
46 Ibid at p. 95.
47 Ibid, Tab 22 at p. 476.
48 Ibid, Tab 19 at p. 95 (merchandise valued at $20.00).
49 Ibid at 96 (merchandise valued at $40.00 and $59.95).
50 Ibid, Tab 22 at p. 477 ($20 deposit).
51 Ibid at p. 478 ($99.95 deposit).
52 Ibid, Tab 20 at p. 112.
53 Ibid, Tab 22 at p. 466.
54 Ibid, Tab 20 at p. 112.
55 Ibid , Tab 22 at p. 466.
56 Witness statement of Sharn Stanley signed by the Applicant on 22 April 2012.
57 Ibid at 7.7 - 7.11.
58 Ibid at 7.14.
59 Ibid.
60 Ibid at 8.2.
61 For example on 22 May 2012 - see [3(f)] above
62 See [33] above
63 Witness Statement of Geoffrey Burnett Brown, Annexure GB-1.
