1
Fair Work Act 2009
s.604—Appeal of decision
Mark Jackson Racing T/A Hackenbush Lodge
v
Samantha McAlpine
(C2015/1674)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER BULL SYDNEY, 29 APRIL 2015
Appeal against decision in transcript of Commissioner Roe at Melbourne on 23 January 2015
in matter number U2014/15149 - refusal to order costs under s.611 of the Act.
[1] This decision concerns an appeal made under s.604 of the Fair Work Act 2009 (Cth)
(the Act) against the decision of Commissioner Roe to dismiss an application for a costs
order. Mark Jackson Racing T/A Hackenbush Lodge (the appellant or the employer) made the
application for a costs order against Ms Samantha McAlpine under s.611 of the Act. It related
to an application Ms McAlpine had made under s.394 of the Act.
[2] The appeal was listed before this Full Bench to consider whether permission to appeal
should be granted. Mr Jackson appeared for the appellant as he had done before the
Commissioner below. Ms McAlpine appeared for herself both before us and before the
Commissioner.
The relevant provisions of the Act
[3] The originating s.394 application was made under Part 3-2 of the Act. Section 400(1)
provides that permission to appeal must not be granted from such a decision unless the Fair
Work Commission (the Commission) considers that it is in the public interest to do so.
Further, in such matters, appeals on a question of fact may only be made on the ground that
the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services
[2015] FWCFB 2303
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 2303
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Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the
test under s.400 as “a stringent one”.1
[4] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.2 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”3
[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appellable error is demonstrated. This is so because an appeal cannot succeed in the absence
of an appellable error.4 However, the fact that the Commission Member at first instance made
an error is not necessarily a sufficient basis for the grant of permission to appeal.5
[6] Although it is clear that this appeal is filed under s.604 of the Act, a question arises as
to whether s.400 of the Act applies. The application for a costs order against Ms McAlpine
relied on s.611 of the Act, not on s.400A. Section 611 is in Part 5-1 of the Act. The question
therefore is whether such an order is, in terms of s.400, a decision made under Part 3-2. This
matter was recently the subject of consideration in Clermont Coal Pty Ltd and others v Troy
Brown and others6 (Clermont). That decision dealt with an appeal against orders made under
s.590 of the Act, which section is also contained in Part 5-1. Consistent with the Full Bench’s
conclusion in Clermont, we shall approach the appeal on the basis that s.400 applies.
However, out of abundant caution, we will also state the conclusion we would reach if s.400
did not apply.
[7] We should reproduce s.611. It is in these terms:
“611 Costs
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(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).”
The proceedings before the Commissioner
[8] There were a number of facts not in contention. We refer to them now. Ms McAlpine
was dismissed on 12 October 2014 and the dismissal took effect on that day. She lodged her
s.394 application on 15 November 2014.7 By that time her application was 12 days beyond
the 21-day time limit set by s.394(2).
[9] On 28 November 2014, the employer lodged a Form F3 Employer Response. The
response raised two objections to the s.394 application. The first was that it was filed out of
time and the second was that the employer was a small business and the minimum
employment period had not been served. On 1 December 2014, the Commission sent out a
notice of listing to deal with the two objections raised by the employer. The listing was for 16
[2015] FWCFB 2303
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January 2015. On 3 December 2014, Ms McAlpine filed a notice of discontinuance and it was
received by the employer the following day. On 4 December 2014, a notice cancelling the
hearing listed for 16 January 2015 was sent out by the Commission.
[10] On 12 December 2014, the employer filed its application for costs. Costs were initially
sought against Ms McAlpine, her solicitor and his law firm. Subsequently, the application
against her solicitor and his law firm was withdrawn. The application for costs against Ms
McAlpine was based on both ss.611(2)(a) and 611(2)(b) of the Act. It was contended that the
application under s.394 had been instituted vexatiously, without reasonable cause and that it
should have been reasonably apparent that the application had no reasonable prospect of
success.
[11] Prior to the hearing before the Commissioner, Mr Jackson had filed two documents.
Each was dated 7 January 2015. The first was a letter identifying the reasons why he believed
Ms McAlpine should not have made an application under s.394 of the Act and the second was
a witness statement.8 Ms McAlpine had also filed a statement.9 Each gave oral evidence.
[12] The evidence raised some issues of only marginal relevance to the considerations the
Commissioner needed to take into account. The animosity apparent in the parties’ evidence no
doubt reflects the circumstances in which the dismissal occurred and the fact that
“intervention/restraining orders” were in place against each of them. The parties could not be
in the same hearing room. The Commissioner was aware of these facts and properly, in our
opinion, identified the matters that were relevant to the exercise of his discretion to make a
costs order and those matters that were not.
[13] Mr Jackson submitted that Ms McAlpine should have known that her employer was a
small business as that term is defined under the Act. He referred to the Commission document
titled “About the F2 Application Form”, which provides information about unfair dismissals
under s.394 of the Act. He also referred to an entry in that document which indicates that
there is a minimum employment period that needs to have been served before an applicant is
entitled to file a claim. The document refers the reader to the Commission’s Unfair Dismissal
Benchbook, which has information on eligibility criteria.
[2015] FWCFB 2303
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[14] In her statement, Ms McAlpine said she had had discussions “via phone and emails
with FWA” about the claim she wished to lodge. She had informed FWA about the
circumstances of her dismissal and the content of a statement she had provided to the police.
She said that had Mr Jackson treated her “professionally”, she would not have sought
guidance from FWA. She said she believed she was able to file her claim and that she had a
good reason to file it on the advice she had received from FWA. In her oral evidence she said
she had spoken to Fair Work Australia and to the “Work Fair Ombudsman” and they had said
they would send her the unfair dismissal claim and would look into the claim being outside
the 21-day time limit.10
[15] One matter was the subject of specific attention before the Commissioner. It
concerned a conversation that Ms McAlpine and Mr Jackson had on 10 November 2014. It is
to be noted that was the day before Ms McAlpine had sent an email to the Commission about
her dismissal but it was not then accompanied by a Form F2. Mr Jackson said that Ms
McAlpine had indicated she had been to see her legal representative on that day and intended
to make an unfair dismissal claim. Mr Jackson said he responded by indicating that it was her
right to do so but that he did not believe she met the eligibility criteria. He said he had told Ms
McAlpine “on several other occasions” when discussing employment matters that there were
certain eligibility criteria to be met when a claim for unfair dismissal was made against a
small business such as his. Ms McAlpine did not agree with Mr Jackson’s account of the
discussion on 10 November 2014 and did not concede that the conversation was in the terms
Mr Jackson described.
[16] Mr Jackson’s only submission that addressed the provisions of s.611 was in his letter
of 7 January 2015, when he said he believed the application was “of a vexatious nature and
made to cause annoyance and distress as the timing seemed to deliberately coincide with
when I was on an overseas family holiday...”.
[17] In respect of the application not being lodged within 21 days, Mr Jackson said he
believed the application was “frivolous and made to see what response it would garner”.11 He
said Ms McAlpine should have ensured she met the relevant criteria prior to commencing
proceedings. He submitted the application should never have been made in the first place. The
applicant had numerous resources available to enable her to ascertain whether she was eligible
to make the application.
[2015] FWCFB 2303
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The Commissioner’s decision
[18] The Commissioner announced his decision at the close of the hearing, indicating that
he believed it appropriate to finalise the proceedings quickly, as they had caused some anxiety
to both parties.
[19] He noted that the application for costs was made under s.611 of the Act and that there
was no dispute about a number of the background facts. He summarised those facts.
He noted the amount that Mr Jackson was seeking.
[20] He said that the parties were in dispute about why the application was filed out of
time, however, if what Ms McAlpine had said was accepted, she would have “a very good
chance” in achieving an extension of time. There would have been a reasonable prospect of
success in an extension of time application. He also found there was no basis to suggest that
the application, being commenced when it was then out of time, had been made vexatiously or
without reasonable cause. Further, it would not have been reasonably apparent to Ms
McAlpine that her application for an extension of time had no reasonable prospects of
success.12
[21] In respect to the objection based on the size of the business, the Commissioner said it
is commonplace for such matters to be the subject of dispute. He gave examples. He said he
was satisfied from the evidence that Ms McAlpine was not clear about “her situation”. Noting
her evidence that she understood she was advised to file a claim, he said that she may have
not communicated the issues correctly to the Fair Work Ombudsman or “Fair Work”. He
observed that “the issue of what is a small business and what is the period of employment can
often be confused and in contention” and that “it would have been correct for the authorities
to enable her to put in her application form”.13
[22] The Commissioner found there was nothing in Ms McAlpine’s evidence that led him
to believe that her s.394 application was made vexatiously or without reasonable cause. She
clearly believed that her termination was unfair and wanted to do something about it which,
he said, was understandable.
[2015] FWCFB 2303
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[23] He said that the employer had taken the opportunity to respond to the s.394 application
by raising an objection about the time point, the period of service and the size of the
employer’s business. The applicant then had two choices; either contest the matter at the
hearing set for 16 January 2015, or accept what was said in the Employer Response form and
withdraw the application. Ms McAlpine had discontinued her application within a few days of
the employer’s objection being lodged. The Commissioner said that if Ms McAlpine had
proceeded, then there might possibly have been a basis to argue it should have been
reasonably apparent her application had no reasonable prospects of success.14
[24] The Commissioner referred to the evidence given by Mr Jackson about the
conversation that occurred on 10 November 2014. On the evidence of both parties, their
relationship was vexed, the encounter was tense and there was a dispute about what actually
happened. Even on Mr Jackson’s version, he said, it was reasonable for Ms McAlpine to not
accept his advice about what she should do with her application.15
[25] The Commissioner said he was not satisfied that the requirements of either
ss.611(2)(a) or 611(2)(b) were made out. He went on to indicate that if he was wrong about
that matter, then, the decision to grant costs being a discretionary one, he would nonetheless
have refused to make such an order. He noted that s.611(1) provided that a person should bear
their own costs in a matter before the Commission. It would be contrary to that general
principle to make an order in this matter when Ms McAlpine had promptly withdrawn her
application upon being advised of the nature of the employer’s objections.
The appeal
[26] The grounds in the notice of appeal take the form of a submission and do not identify
with any specificity the errors that it is said the Commissioner made. It is apparent, however,
from the paragraphs which are contained under the heading “Grounds for appeal” that the
appellant raises the following matters:
As the period of employment and the fact the employer was a small business were
never in dispute, the Commissioner was in error in stating that the s.394 application
had merit in relation to determining the business size.
[2015] FWCFB 2303
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The Commissioner was in error in finding there may have been confusion between
Ms McAlpine and FWA regarding the relevant facts, as it is not the role of FWA to
give advice, and it was not relevant to take into account the alleged communications
between FWA and Ms McAlpine.
The evidence given by Ms McAlpine about the conversation that occurred between
herself and Mr Jackson on 10 November 2014 was not reliable.
The Commissioner erred in finding that the application for an extension of time may
have been successful due to distress and injury Ms McAlpine had suffered at the time
of termination. There was no proof of distress or injury. In any event, she was well
enough physically and mentally to have gained a full-time job shortly after she was
dismissed.
[27] The entry made in the notice of appeal as to why it was in the public interest to grant
permission to appeal is so that all decisions should be made fairly and justly and based on the
facts of each case.
[28] We commence by endorsing the Commissioner’s comment that, as a general rule, each
party will bear their own costs in proceedings before the Commission. That is what s.611(1)
provides. The power to award costs is to be exercised with caution and only in a clear case.16
A proceeding will be considered to have been instituted vexatiously where the predominant
purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a
collateral advantage.17 The approach to be taken to the meaning of “without reasonable cause”
and whether it should have been reasonably apparent a proceeding had no reasonable prospect
of success has recently been discussed in the Full Bench decision in Neil Keep v Performance
Automobiles Pty Ltd.18 We have applied the same approach in considering the reasons why
Commissioner Roe decided to not grant an order for costs.
[29] Mr Jackson filed written submissions dated 25 March 2015. We have taken all of
those submissions into account. The key points made largely reproduce what is contained in
the notice of appeal. They are also the points which were relied on by Mr Jackson in the
proceedings before the Commissioner.
[2015] FWCFB 2303
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[30] We should also note that Mr Jackson filed a submission dated 25 February 2015 to
which extracts from Ms McAlpine’s Facebook page were annexed. No application to lead
fresh evidence was made. In any event, we would not have received the submission; it is
irrelevant to the matters raised in the grounds of appeal.
Our decision
[31] We have considered all the matters raised by the appellant. In our opinion, the decision
of the Commissioner was one confined to the facts peculiar to the application before him. It
raises no broad issues of principle or general application. He applied the relevant provisions
of the Act to the facts in the matter. Each of the relevant factual findings he made was
reasonably open on the evidence before him.
[32] Some of Mr Jackson’s submissions reflect his animosity towards Ms McAlpine. We
suspect that it is reciprocal. This has resulted in some matters being raised in the proceedings
below, and before us, which are either irrelevant or of only marginal relevance to the
provisions of the Act on what must be established to persuade the Commission to make an
order under s.611(2).
[33] In our opinion, the Commissioner properly considered ss.611(2)(a) and 611(2)(b) of
the Act, and applied the tests in those sections to the facts in the matter. That he did not accept
the submissions of Mr Jackson to disbelieve all that Ms McAlpine had said does not reflect
appellable error. The parties gave evidence before the Commissioner and were asked a
number of questions. It was open to the Commissioner to accept the evidence given by Ms
McAlpine. Having done so, neither of the thresholds which the two subsections require to be
established was met.
[34] The appellant has not identified any public interest considerations that arise out of the
decision of the Commissioner or which are enlivened by the grounds of appeal. Accordingly,
s.400 of the Act provides that we must not grant permission to appeal. In the event s.400 of
the Act does not apply to this appeal, we are not satisfied that the appellant has advanced any
grounds which would justify the grant of permission to appeal. The decision of the
Commissioner is not one attended by sufficient doubt to warrant its reconsideration, nor are
we persuaded that substantial injustice will result if permission is refused.
[2015] FWCFB 2303
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[35] The appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr M Jackson for Mark Jackson Racing T/A Hackenbush Lodge.
Ms S McAlpine in person.
Hearing details:
Sydney.
2015.
April 8.
Printed by authority of the Commonwealth Government Printer
Price code C, PR562730
1 [2011] FCAFC 54 at [43].
2 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-7 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler [2011] FCAFC 54 at [44]-[46].
3 [2010] FWAFB 5343 at [27].
4 Wan v AIRC [2001] FCA 1803 at [30].
5 Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [43]; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663 at [28].
6 [2015] FWCFB 2460.
THE FAIR WORK COMMISSION THE SEAA
[2015] FWCFB 2303
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7 In fact, Ms McAlpine tried to initiate a claim about her dismissal on 10 November 2014; however, it did not contain a Form
F2. Subsequently, she filed a Form F2 application on 15 November 2014.
8 Exhibit H1.
9 Exhibit M1.
10 PN119-PN136.
11 Letter dated 7 January 2015.
12 PN203-PN206.
13 PN208.
14 PN210-PN211.
15 PN213.
16 Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.
17 Nilsen v Loyal Orange Trust (1997) 76 IR 180.
18 [2015] FWCFB 1956; see also Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB
810.
