1
Fair Work Act 2009
s.789FC Anti bullying orders s.402 and s.611 – Application for Costs Orders against Parties
Ms Rebecca Woods and Mr Richard Jackson
v
Collie Chamber of Commerce and Industry Inc. T/A Collie CCI; Mr David
Churches; Mr Nic Smargiassi; Mr Marc Bernardi
(AB2015/206 and AB2015/207)
DEPUTY PRESIDENT BULL SYDNEY, 25 NOVEMBER 2015
Anti-bullying order application, matters heard together, matters discontinued, application for
costs order under s.402 and s.611 against the applicants, meaning of ‘vexatiously,’ ‘without
reasonable cause’ and ‘no reasonable prospect of success’, costs application dismissed.
[1] On 26 March 2015, Ms Woods and Mr Jackson made an application under s.789FC of
the Fair Work Act 2009 (the Act) for an order to stop bullying. The applications named David
Churches, Nic Smargiassi, and Mr Marc Bernardi (the respondents) as the individuals of the
alleged bullying behaviour, and the Collie Chamber of Commerce & Industry Inc. (the
Chamber) as the employer. At the relevant time the respondents were members of the
Chamber’s Management Committee (the committee) .
[2] A Response from the employer to an application for an order to stop bullying (F73)
was received from Erik-Jan Mellegers the President of the Chamber at the time, on behalf of
the employer on 7 April 2015 accepting that bullying was occurring. Mr Churches however
submitted that Mr Mellegers had no authority to reply on behalf of the Chamber.
[3] Ms Woods is employed by the Chamber as the Administration Manager. In respect of
Ms Woods’ application, she alleged that the bullying she had been subject to included being
intimidated and made to feel uncomfortable by the respondents.
[4] Mr Jackson is employed by the Chamber as the Chief Executive Officer on a part time
basis working 3 days a week. In respect of Mr Jackson’s application he alleged that he had
been bullied by being threatened and shouted at by the respondents.
[5] The applications were the subject of a telephone conference before Commissioner
Hampton on 15 and 30 April 2015, the matters were not resolved. The applications were
subsequently referred to me for determination. Directions were issued on 6 May 2015 for the
parties to file submissions in respect of the applications and listed for hearing on 20 August
2015 at the Collie Court House in Western Australia.
[2015] FWC 6620 [Note: An appeal pursuant to s.604 (C2015/8173) was
lodged against this decision - refer to Full Bench decision dated 14 April
2016 [[2016] FWCFB 2367] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB2367.htm
[2015] FWC 6620
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[6] It was agreed that both applications be heard together as the allegations made and the
factual matrix accompanying the allegations were analogous.
[7] The applicants represented themselves.
[8] Ms Vinciullo, a solicitor sought leave to represent the respondents and the Chamber.
Mr Jackson opposed Ms Vinciullo’s appearance on behalf of the Chamber on the basis that
the she was not properly appointed to act on the Chamber’s behalf.1
[9] Ms Vinciullo filed a Notice of Representative commencing to act (F53) on 19 August
2015, and submitted at the 20 August 2015 hearing that her appearance would enable the
matter to be dealt with more efficiently, taking into account the complexity of the matter
(s.596(2)(a)), and that the respondents intended to run a jurisdictional issue.2 It was put on the
basis of the jurisdictional argument the application had no reasonable prospect of success and
the applications should be dismissed.3
[10] The jurisdictional objection had not previously been raised in the responses filed or the
written submissions of the respondents.
[11] The jurisdictional objection raised by the respondents was put on the basis that the
Chamber is not a constitutionally covered corporation or trading corporation; and therefore
the Commission does not have the jurisdiction to hear the matter.
[12] Section 789FD(1) of the Act requires that a worker who alleges they have been
subject to bullying must work in a “constitutionally-covered business”. A business is a
constitutionally-covered business if it is a constitutional corporation.4 The term constitutional
corporation is defined in s.12 of the Act in the following terms:
“constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies.”
[13] Section 51(xx) of the Australian Constitution, in effect refers to “constitutional
corporations” as foreign corporations, and trading or financial corporations formed within the
limits of the Commonwealth.
[14] The Commission did not hear the extent of this objection, nor were the applicants
provided with notice of the jurisdictional objection prior to the hearing.5
1 Accepting the applicants’ position results in there being no appearance by the Chamber as the employer at the hearing
2 PN18
3 See PN596 for grant of leave to appear
4 See s.789FD(3) of the Act
5 See PN85 to PN109
[2015] FWC 6620
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Background
[15] The background to the applications is unusual in that the three individual respondents
maintain they are currently committee members of the Chamber.6 Mr Churches who was the
spokesperson for the individual respondents submitted that a group, of which he is member of
together with the individual respondents continue to meet as the committee of the Chamber
but do not do so in the premises of the Chamber itself as they do not have access to the
building, nor do they have any interaction with the employees of the Chamber. This
committee was referred to as the ‘old committee’. No minutes of any meetings held by the old
committee were made available to the Commission.
[16] At the hearing on 20 August 2015, the applicants submitted that at an Annual General
Meeting of the Chamber held on 10 August 2015, a new committee was voted in which did
not include Mr Churches, Mr Smargiassi and Mr Bernardi. On this basis the respondents are
not current committee members as of 10 August 2015.
[17] The respondents submitted that the 10 August 2015, Annual General Meeting was
unconstitutional, as such they remain members of the committee. Mr Churches submitted that
he had taken this issue up with the Western Australian Department of Commerce which has
responsibility for bodies such as the Chamber constituted under the Associations
Incorporations Act 1987 (WA), no evidence of this was provided to the Commission.
[18] Section 789FF of the Act provides that the Commission may make a stop bullying
order provided that there is a risk that the worker will continue to be bullied at work. The
conduct complained of by the applicants resulted from actions taken by the respondents in
their role as committee members of the Chamber. On the submissions of the applicants the
respondents no longer occupy committee roles. Following an adjournment at the hearing, the
applicants advised the Commission that they did not wish to proceed with their applications
on the basis they no longer have contact with the respondents and therefore will not continue
to be bullied.
Costs application
[19] On 3 September 2015, Mr Churches, on behalf of the respondents filed an application
for costs under s.402 of the Fair Work Act 2009 (the Act) and additionally under s.611 of the
Act with respect to costs incurred from the s.789FC applications of Ms Woods and Mr
Jackson.
[20] The parties were asked whether they were content to have the costs application
determined on the papers. On 30 September 2015, Mr Churches wrote to the Commission
requesting the costs application proceed by way of a hearing with witness evidence.
[21] Directions were issued on 30 September 2015 directing parties to file submissions
with respect to the costs order application, and the matter was listed for hearing on 13
November 2015 in Collie.
6 A copy of the Chamber’s Constitution provided by Mr Churches on 17 November 2015 refers to a management ‘council’
[2015] FWC 6620
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Submissions and evidence of the respondents
[22] The respondents claim that they incurred costs due to the unreasonable acts of the
applicants in the conduct or continuation of the matter and seek an order for costs pursuant to
s.400A of the Act. Although the application named s.402 of the Act as being one of the
relevant sections of the Act to which the respondents sought costs, subsequent submissions
filed by the respondents referred to s.400A of the Act.
[23] An order is also sought under s.611 of the Act on the basis that the applicants acted
vexatiously or without reasonable cause, and that it should have been reasonably apparent to
the applicants that their applications had no reasonable prospects of success.7
[24] The application for costs pursued under s.400A cannot succeed as it is clear by the
terms of that section that it only has application to matters that have commenced as unfair
dismissal claims.8 I have disregarded the submissions made by the respondents in respect to a
costs order under s.400A of the Act.
[25] In support of their costs application, the respondents each gave evidence which in
reality concentrated on why they had not engaged in the alleged bullying as opposed to why
the applications were made:
vexatiously or without reasonable cause; or
that it should have been reasonably apparent to the applicants that the applications had
no reasonable prospect of success.
[26] Also called to give evidence for the respondents were:
Mr Darcy Buckle – a former committee member
Mr Peter Smargiassi – Manager Collie Steel, (son of Nic Smargiassi, a respondent)
Mr Peter Hall – a former Vice President of the Chamber
[27] The evidence given by the respondent’s witnesses did not assist the respondents in
establishing that the applications of Ms Woods and Mr Jackson were vexatious, made without
reasonable cause and/or that it should have been reasonably apparent to the applicants that
there was no reasonable prospect of success. The witness evidence either denied that any
bullying had occurred or referred to the conduct of various persons at Chamber meetings.
[28] It was submitted that the respondents’ reputations in Collie had been damaged by the
applications. Mr Churches referred to an email he had subsequently received on 28 July 2015,
which made a number of unkind references to his character. Mr Churches submits that the
applicants, and in particular Ms Woods acted vexatiously by making her application known to
the Collie community. He drew this conclusion from the reference in Ms Woods’ application
at Q.2.1, where Ms Woods states that her husband and herself had received expressions of
support from a number of community members in relation to her application.
7 3.2 of the submitted Application for Costs (F6)
8 S.400A applies to matters arising under Part 3-2 Unfair Dismissals of the Act. Arguably this should have been reasonably
apparent to the respondents
[2015] FWC 6620
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[29] The respondents argue that following the making of the application, the respondents
told the applicants that their applications lacked merit, but despite this, the applicants still
persisted with their applications.
[30] It is submitted that Ms Woods and Mr Jackson lodged their originating applications
vexatiously and without reasonable cause, and that the applicants were aware that such an
application had no reasonable prospects of success.
[31] Further, the continuation of the matter by the applicants, despite the applicants
‘assertions’9 that the respondents are not members of the Chamber and the discontinuance of
the applications demonstrates a clear inference that the applications lacked a reasonable
cause.10
[32] The written submissions of the respondents did not raise issues with regard to the
application being made “vexatiously”, but rather focused on “without reasonable cause” and
“no reasonable prospects of success”. Mr Churches however did, through his own evidence
and submissions argue that the applications were made vexatiously.
[33] At the costs hearing, Mr Churches submitted that the respondents had wanted the
application to proceed at the 20 August 2015 hearing, however, this submission is in contrast
to those made by their legal representative on the day asking for the matters to be dismissed.
[34] The respondents were asked by the Commission to specify the costs they were seeking
as this information was not contained in the originating costs application. A final costing was
provided by email from Mr Churches on 15 September 2105. A sum of $28,051.10 is claimed
as costs incurred through the engagement of the legal firm K&L Gates and a further $22,900
charged at $100 per hour by Mr Churches for his preparation time on behalf of the
respondents, being a total of $50,951.10 in costs sought.
[35] The question of self-represented parties being entitled to costs was traversed by
Hatcher VP in Paul Hill v L E Stewart Investments Pty Ltd T/A Southern Highlands Taxis and
Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca11 the Vice President stated:
“[11] The question remains as to what costs can be ordered. The word “costs” as used
in s.611 and elsewhere in the Act is not defined. “Costs” is usually interpreted to mean
fees for professional legal services and other permissible out-of-pocket expenses
actually incurred in the conduct of litigation. It does not include the time spent by a
litigant in person in preparing for or conducting his or her case.12 The respondents
were self-represented; they cannot therefore be compensated for the time spent
preparing for or attending the hearing as parties.”
[36] However, at paragraph 12 of that decision, it was held that self-represented parties
may claim witness fees where they give evidence in a matter.
9 3.3(f) of the Application for costs
10 Ibid at 3.3(e) to 3.3(g)
11 [2014] FWC 5588. This matter also arose out of a bullying application
12 Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409 per Mason CJ and Brennan, Deane, Dawson and McHugh JJ
[2015] FWC 6620
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[37] A copy of the K&L Gates invoices was provided to the Commission. The invoices
were made out to the respondents’ various businesses which arose from a costs agreement
with K&L Gates, a copy of which was provided to the Commission on 17 November 2015.
Applicants’ submissions and evidence
[38] Ms Woods and Mr Jackson gave evidence as to why the costs application should not
be granted.
[39] Ms Woods submits that she was well within her rights to submit her s.789FC
application as she had experienced the alleged repeated bullying behaviour which was
detailed in her application.
[40] Ms Woods further submits that in attendance at the monthly executive meetings, the
bullying behaviour was becoming the ‘norm’. The alleged behaviour was reported to the then
President and CEO of the Chamber with meetings held in respect to the alleged behaviour.
Further the President and the Executive had tried to resolve the issues unsuccessfully as the
respondents did not attend scheduled mediation meetings. Ms Woods submits that based on
the bullying behaviour she experienced from the respondents she had reasonable cause to
commence the proceedings against the respondents.
[41] Mr Jackson also submits that he had reasonable cause to instigate his application, in
that the respondents had engaged in intimidating tactics against Ms Woods and himself. Mr
Jackson further submits that because the behaviour had occurred over a considerable period of
time, he was of the belief that there was a “considerable chance of success” in achieving the
stop bullying orders sought.13
[42] Both applicants submit that the members held an Annual General Meeting (AGM) on
10 August 2015, 10 days prior to the hearing, and the next Executive meeting held with the
‘newly elected’ committee was not until 19 August 2015, a day before the hearing. Ms Woods
states that the minutes of the AGM were not received until a week before the hearing.
[43] Mr Jackson also submits that until the day of the hearing, the applicants “had very
strong reasons to believe that orders would be made against the respondents”14 and that the
respondents have failed to provide any evidence the applicants have behaved “vexatiously or
without reasonable cause” or that it was reasonably apparent that the applications had no
reasonable prospects of success”
[44] Mr Glyn Yates also gave evidence in support of the applicants.15 Mr Yates had been a
former President of the Chamber. Mr Yates attended a meeting of the committee on 18
February 2015, which addressed the complaint of Ms Woods of being bullied and harassed by
of February 2015. Mr Yates’ evidence was that the meeting did not deal with the complaint in
a constructive manner due to the actions of the respondents. The next day he spoke to Ms
Woods who stated she was trying to avoid any contact with the respondents.
13 Mr Richard Jackson’s submissions in reply dated 21 October 2015
14 Mr Jackson’s submissions dated 23 September 2015
15 See Mr Yates’ witness statement Exhibit A4
[2015] FWC 6620
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Conclusion
[45] Under s.611 of the Act, an application for costs can be made in relation to any matter
under the Act provided the time frame of filing the application is within 14 days16 after the
matter has been determined by the Commission or discontinued. In this case, the applications
were discontinued on 20 August 2015 and the costs application made on 3 September 2015
being within the 14 day time period.
[46] In relation to an application for costs, s.611 of the Act states:
“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, 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)”
[47] As can be seen from s.611(1), the general rule is that parties will bear their own costs
in proceedings before the Commission, however s.611(2) provides an exception to the general
rule.
[48] The Commission may make an order for costs if satisfied that the application was
made vexatiously, without reasonable cause or it was reasonably apparent that the application
had no reasonable prospects of success.
[49] The power to award costs conferred by s.611 is clearly discretionary in nature. It
provides where the Commission is ‘satisfied’ of certain matters, then the Commission ‘may’
make an order for costs.17 In considering whether the Commission chooses to exercise its
jurisdiction to award costs as an exception to the general rule that a party must bear their own
16 S.402
17 See S&L Kurc Nominees Pty Ltd as trustees for the Kurc Family Trust trading as Riot Art and Craft v Saddington
(PR966909)
[2015] FWC 6620
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costs in relation to a matter before the Commission, it does not necessarily follow that if the
limited circumstances prescribed under s.611 apply, that the discretion will be exercised18.
[50] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission19,
the High Court observed that:
“‘Discretion’ is a notion that ‘signifies a number of different legal concepts’. In
general terms, it refers to a decision-making process in which ‘no one
[consideration] and no combination of [considerations] is necessarily
determinative of the result.’ Rather, the decision-maker is allowed some
latitude as to the choice of the decision to be made. The latitude may be
considerable as, for example, where the relevant considerations are confined
only by the subject-matter and object of the legislation which confers the
discretion. On the other hand, it may be quite narrow where, for example, the
decision-maker is required to make a particular decision if he or she forms a
particular opinion or value judgment. (footnotes omitted)”
[51] In A Baker v Salva Resources Pty Ltd20 the Full Bench made the following
observations with respect to s.611(2)(b) of the Act:
“[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;21 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 groundless22 or so lacking in merit or
substance as to be not reasonably arguable.”23
[52] In Keep v Performance Automobiles Pty Ltd24 a Full Bench of the Fair Work
Commission stated that:
“[16] The FWC’s power to order that a person bear some or all of the costs of another
person in relation to an application is only enlivened if the FWC is satisfied as to the
matters set out in either s.611(2)(a) or s.611(2)(b).
18 See [2011] FWA 2225 at [74]
19 [2000] 203 CLR 194 at p204 per Gleeson CJ, Gaudron and Hayne JJ
20 [2011] FWAFB 4014
21 Wodonga Rural City Council v Lewis, PR956243, at para 6
22 Deane v Paper Australia Pty Ltd, PR932454, at paras 7 and 8.
23 A Smith v Barwon Region Water Authority, [2009] AIRCFB 769, at para 48
24 Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb1956.htm
http://www.fwa.gov.au/decisionssigned/html/2009aircfb769.htm
http://www.fwa.gov.au/alldocuments/PR932454.htm
http://www.fwa.gov.au/alldocuments/PR956243.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb4014.htm
[2015] FWC 6620
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[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in
Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church).
Church is authority for the following propositions:
(i) The power to order costs pursuant to s.611(2) should be exercised with
caution and only in a clear case.
(ii) A party cannot be said to have made an application ‘without reasonable
cause’ within the meaning of s.611(2)(a), simply because his or her argument
proves unsuccessful.
(iii) One way of testing whether a proceeding is instituted ‘without reasonable
cause’ is to ask whether upon the facts known to the applicant at the time of
instituting the proceeding, there was no substantial prospect of success.
(iv) The test imposed by the expression ‘without reasonable cause’ is similar to
that adopted for summary judgment, that is, ‘so obviously untenable that it
cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which
the Court is satisfied cannot succeed’.
[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied
that ‘it should have been reasonably apparent’ to that person that their application had
‘no reasonable prospect of success’. The expression ‘should have been reasonably
apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an
objective basis as opposed to the applicant’s subjective belief.
[19] There is Full Bench authority for the proposition that the Commission should
exercise caution before arriving at the conclusion that an application had ‘no
reasonable prospects of success’. In Deane v Paper Australia Pty Ltd25 a Full Bench
made the following observation about this expression in the context of enlivening a
power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;
“unless upon the facts apparent to the applicant at the time of instituting the
[application], 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 available26”.”
[53] A Full Bench of the Commission in Qantas Airways Limited v Mr Paul Carter27 stated
as follows:
“[20] It is clear from the terms of s.611 of the Act that the point at which the
Commission must determine whether or not Qantas' application to appeal was
vexatious, without reasonable cause or had no reasonable prospect of success, is when
Qantas made the application to appeal.”
25 PR932454
26 Ibid at [8], also see Baker v Salva Resources Pty Ltd [2011] FWAFB 4014 at [10]; and Metecno Pty Ltd T/A Bondor v
Cameron [2014] FWCFB 2128 at [16]
27 Qantas Airways Ltd v Carter [2013] FWCFB 1811
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb1811.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb2128.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb4014.htm
http://www.fwc.gov.au/alldocuments/PR932454.htm
[2015] FWC 6620
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[54] The respondents referred to the decision of Wilcox J in Re Joseph Michael Kanan v
Australian Postal and Telecommunications Union28 where His Honour stated:
“[29] 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.”
[55] As was evidenced in the proceedings, both parties accepted that when the applications
were made the respondents were members of the management committee, and that it wasn’t
until (on the applicant’s submissions) the 10 August 2015, Annual General Meeting that the
respondents’ status as members of the management committee ceased.
[56] In my view, it was entirely appropriate that the applicants discontinued their
applications having advised the Commission on 20 August 2015, that the respondents were no
longer on the management committee and did not have cause to come into contact with the
applicants. Both applicants confirmed at the costs hearing that they no longer have contact
with the respondents, other than the ‘23 emails’ Ms Woods stated she had received from Mr
Churches regarding his costs application.
[57] It cannot be seriously advanced by the respondents that the applicants’ discontinuance
of their applications on 20 August 2015, due to the altered status of the respondents meant
that the applications were filed without reasonable cause some five months earlier or that it
should have been reasonably apparent that the applications had no reasonable prospects of
success. Their argument has even less weight based on the respondents maintaining that they
continue to be members of the management committee.
[58] Although the merits of the applications were not finally determined, the applicants
have demonstrated to my satisfaction that the applications were made with reasonable cause
and that it was not reasonably apparent that that they had no reasonable prospect of success.
[59] This then leaves the question of whether the applications were filed vexatiously.
[60] The approach generally taken by this Commission as to the meaning of vexatious in
s.611(2)(a) is that advocated by Justice North in Nilsen v Loyal Orange Trust.29 Although the
comments related to the Workplace Relations Act 1996, the relevant provision was in terms
similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or
without reasonable cause”. His Honour said:
“The next question is whether the proceeding was instituted vexatiously. This looks to
the motive of the applicant in instituting the proceeding. It is an alternative ground to
the ground based on a lack of reasonable cause. It therefore may apply where there is a
28 [1992] FCA 366, 43 IR 257
29 [1997] 76 IR 180 at page 181
[2015] FWC 6620
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reasonable basis for instituting the proceeding. This context requires the concept to be
narrowly construed. A proceeding will be instituted vexatiously where the
predominant purpose in instituting the proceeding is to harass or embarrass the other
party, or to gain a collateral advantage : see Attorney General v Wentworth (1988) 14
NSWLR 481 at 491. The approach of the High Court in an application for a permanent
stay of criminal proceedings on the ground of abuse of process constituted by
improper purpose is instructive. In Williams v Spautz [1992] HCA 34, (1992) 174
CLR 509, at 522, Mason CJ, Dawson, Toohey and McHugh JJ said:
“Bridge LJ identified one difficulty when he said ([1977] 1 WLR, at p 503;
[1977] 2 All ER, at p 586):
‘What if a litigant with a genuine cause of action, which he would wish
to pursue in any event, can be shown also to have an ulterior purpose in
view as a desired byproduct of the litigation? Can he on that ground be
debarred from proceeding? I very much doubt it.’ (Emphasis added.)
So would we. But his Lordship, by implication, evidently sees no difficulty with the
case in which the plaintiff does not wish to pursue his or her cause of action to a
conclusion because he or she intends to use the proceedings for a collateral and
improper purpose.””
[61] The evidence of both applicants was illustrative of a strong belief that their
applications were genuine and filed as a last resort to resolve what they perceived as bullying
by the respondents. Cross examination of the applicants by Mr Churches did not detract from
the applicants’ stated position.
[62] The question of whether or not Ms Woods and Mr Jackson had been bullied at work
was not determined by the Commission. However, given the submissions of the applicants in
these proceedings about the originating applications, the applicants had justification to submit
an application to the Commission.
[63] Both Ms Woods and Mr Jackson submit that they felt ‘intimated’ by the behaviour of
the respondents at their workplace, and in the words of Ms Woods “at the time nothing was
there to protect me as a worker of the Collie Chamber of Commerce, 3 of my employers were
allowed to enter my place of work and give me an ultimatum…” 30 The employer response
(F73) which was filed by the President of the Collie Chamber at the time, also acknowledged
the bullying behaviour alleged in the applications.
[64] The evidence generally presented by the all the witnesses painted a picture that in
recent times there was a dysfunctional management committee racked with division and
attempts by various interest groups to gain control. The approaching of administration staff by
members of the management committee; whether well intentioned or otherwise is not a
prudent practice and appears to have led in part at least to Ms Woods’ application.
[65] I am not satisfied that the applications were made vexatiously in the sense they were
motivated by the predominant purpose of harassing or embarrassing the respondents or to
gain a collateral advantage.
30 Ms Woods’ submissions dated 21 September 2015
[2015] FWC 6620
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[66] I am further not satisfied the applications were made without reasonable cause or that
it should have been apparent to the applicants that their applications had no reasonable
prospects of success.
[67] While it is clear that the respondents; on their own evidence were aggrieved by the
allegations and believe they have been shamed in the eyes of some in the Collie community,
there has been no finding made against them and the applications remain as allegations no
longer proceeded with.
[68] As the respondents have not satisfied the Commission of the requirements imposed by
the matters in s.611(2)(a) or (b), the discretion to make an order for costs is not enlivened and
the costs application must be dismissed.
[69] The respondents’ application for costs is accordingly dismissed.
DEPUTY PRESIDENT
Appearances
Ms R Woods on her own behalf
Mr R Jackson on his own behalf
Mr D Churches on behalf of the respondents
Hearing details
Collie
2015
13 November
Printed by authority of the Commonwealth Government Printer
Price code C, PR572278
OF THE FAIR WORK COMMISSION S Oil THE
