Churches, David & Smargiassi, Nic and Another v Jackson, Richard & Woods, Rebecca - [2016] FWCFB 2367

Fair Work Act 2009
s.604—Appeal of decision

David Churches; Nic Smargiassi; Marc Bernardi

Richard Jackson; Rebecca Woods
(C2015/8173)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

DEPUTY PRESIDENT CLANCY

COMMISSIONER HAMPTON

PERTH, 14 APRIL 2016

Appeal against decision in relation to costs order – jurisdiction – discretion – allegations of
bias

[1] This is an appeal against a decision ([2015] FWC 6620) issued by Deputy President
Bull on 25 November 2015. The appeal, for which permission is required, is made pursuant to
s.604 of the Fair Work Act 2009 (the FW Act).

[2] The appeal was the subject of a hearing in Perth on 26 February 2016. In the course of
this hearing we became concerned that the parties may not have had the same opportunity to
access the transcript for the matter before the Deputy President. As a result, we arranged for
that transcript, in written and sound file formats, to be made available. Additionally, because
Mr Jackson participated in the appeal proceedings by way of an imperfect telephone link, we
arranged for a copy of the transcript of those appeal proceedings to also be made available to
him. The parties were invited to provide further written submissions addressing issues raised
through the provision of these transcripts. The time provided for the Appellants to lodge
written submissions was then extended. We have taken the additional written submissions,
including the submissions received on 4 April 2016, into account in reaching our conclusions.

The Background

[3] Ms Woods and Mr Jackson were employees of the Collie Chamber of Commerce and
Industry Inc T/A Collie CCI (the Collie Chamber). Mr Churches, Mr Smargiassi and
Mr Bernardi were, at various times, on the management committee of the Collie Chamber.

[4] Before summarising the decision under appeal we have briefly set out the background
to the matter. All of the persons involved in this matter have been associated, in various ways,
with the Collie Chamber. It is clear that there has been significant disagreement over the
management of the Collie Chamber. In March 2015, Ms Woods and Mr Jackson (the
Applicants at first instance and the Respondents in this appeal) each made an application
under s.789FC of the FW Act for an order to stop bullying. The applications relied upon

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DECISION

E AUSTRALIA FairWork Commission

[2016] FWCFB 2367

alleged conduct by Mr Churches, Mr Smargiassi and Mr Bernardi (the Appellants in this
appeal) and also named the Collie Chamber (collectively, the Respondents at first instance).

[5] The bullying applications were subject to a preliminary conference before
Commissioner Hampton and were referred to Deputy President Bull for determination. They
were the subject of a hearing on 20 August 2015. At that hearing a grant of permission was
given for representation of the Appellants. An initial jurisdictional objection to the bullying
application was raised on the basis that the Collie Chamber was not a constitutionally-covered
corporation. The Deputy President was not required to determine this issue because, in the
course of the proceedings, the two applicants advised the Deputy President that they no longer
wished to pursue their applications given the apparent change in the composition of the Collie
Chamber management committee.

[6] The Appellants subsequently filed a costs application and sought costs pursuant to
ss.400A and 611 of the FW Act. That costs application was made on the grounds that the
Appellants incurred costs as a result of the unreasonable acts of the Applicants in making and
continuing the matter. It was the subject of an extensive hearing before Deputy President Bull
in Collie on 13 November 2015. The parties represented themselves in this hearing which
provided an opportunity for substantial witness evidence. The appeal is against that costs
decision.

[7] In his decision, the Deputy President considered only the order for costs sought under
s.611 as he concluded that s.400A related only to unfair dismissal claims.

[8] The Deputy President summarised the evidence before him relative to the basis for the
bullying applications, the Appellants’ position with respect to the allegations made against
them and the circumstances under which the bullying applications were later withdrawn. In
his decision the Deputy President considered the operation of s.611 and the application of that
section in various other matters. He noted1 the capacity for self-represented parties to pursue
certain costs.

[9] The Deputy President concluded that:

“[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

[2016] FWCFB 2367

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.”2

[10] The Deputy President then addressed the question of whether the bullying applications
were filed vexatiously. In this regard he concluded:

“[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…” 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.”3

[11] Finally, the Deputy President concluded that he was not satisfied that the bullying
applications were made without reasonable cause or that it should have been apparent to them
that their applications had no reasonable prospect of success.

[12] In their appeal, the Appellants (the Respondents at first instance) assert that the
Deputy President’s decision was in error on a substantial number of grounds. Whilst these
grounds overlap to some degree we have set them out in the terms presented in the Notice of
Appeal:

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1. Error in the exercising of discretion;

2. Jurisdictional error;

3. The decision included irrelevant considerations;

4. The decision was unreasonable;

5. The decision was attended by legal unreasonableness;

6. The decision was based on irrelevant evidence and relied on suspicion or
speculation;

7. There was no proper opportunity to cross examine witnesses;

8. There was a failure to deal with the matter under the FW Act and the Fair
Work Commission Rules; and

9. Actual bias.

[13] In considering the various appeal grounds, it is appropriate that we note that the
position put by Ms Woods and Mr Jackson can be simply summarised on the basis that they
asserted that there is no error in the Deputy President’s decision and that this decision was
reached through an appropriate hearing process.

[14] We have addressed each of the appeal grounds and matters argued before us below.
However, before doing so, it is necessary that we briefly address the nature of an appeal
proceeding of this type.

Permission to Appeal

[15] The appeal concerns a decision by the Deputy President not to award costs, and
primarily focuses on s.611 of the FW Act. This section 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.

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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).”

[16] The appeal in this matter is made on the basis that it is asserted that the Deputy
President’s decision reflected jurisdictional error and errors in the exercise of discretion.
Whilst permission to appeal is generally granted where a Full Bench concludes that there is
sufficient doubt so as to warrant reconsideration of a matter or where an injustice may result if
that permission is not granted, jurisdictional error generally gives rise to a grant of
permission.

[17] However, in terms of decisions which are of a discretionary nature, a Full Bench on
appeal does not simply substitute its view on the matters determined at first instance. In these
circumstances appealable error must be established. The High Court in House v King4 referred
to this in the following terms:

“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it had the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts is is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
to properly exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”5

[18] In order to determine if permission to appeal should be granted in these circumstances,
we have reviewed the appeal arguments on the basis that they assert both jurisdictional and
discretionary errors.

[19] It is also appropriate that we acknowledge the advice provided at the commencement
of the appeal proceedings to the effect that this matter involves deep-seated personal issues
surrounding the operation of the Collie Chamber.6 That said, the task before us is simply to
consider the Deputy President’s decision. The resolution, or otherwise of these asserted
deep-seated issues is a matter for the parties themselves.

[20] Given the nature of the original applications being considered at first instance in these
matters, and the circumstances under which those applications were discontinued, it is
necessary for us to set some of the statutory context.

Anti-Bullying jurisdiction

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[21] The original applications sought orders to stop workplace bullying under s.789FC of
the FW Act. Bullying conduct is defined by s.789FD of the FW Act as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of
which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management
action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the
Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[22] Importantly for present purposes, bullying conduct may be carried out by one or more
individuals in a workplace and these may not necessarily be workers as defined.7 Each of the
Appellants were relevant individuals, and provided their conduct impacted upon the two
Respondents whilst they were at work, such conduct was potentially germane to the
anti-bullying applications.

[23] The second relevant aspect arising from s.789FD is that any bullying conduct must
have taken place whilst the applicant worker(s) was at work in a constitutionally-covered
workplace. The Appellants’ contention that the workplace, the Collie Chamber, was not a
constitutional corporation (a trading corporation) and therefore not a constitutionally-covered
workplace, was considered by the Deputy President in the hearing that led to the
discontinuance of the anti-bullying applications.

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[24] The discontinuance of the anti-bullying applications also took place in the context of a
dispute about the proper membership of the committee and control of the Collie Chamber,
including whether a recent Annual General Meeting was properly conducted and whether as a
result, each of the Appellants remained as members of the committee. Amongst other
potential implications, this dispute had a bearing upon whether the Commission could
ultimately make orders, assuming that bullying conduct had been found.

[25] This arises from the provisions of s.789FF of the FW Act as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group
of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work
by the individual or group;

then the FWC may make any order it considers appropriate (other than an order
requiring payment of a pecuniary amount) to prevent the worker from being
bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by another
person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve
grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any
procedure available to the worker to resolve grievances or disputes—those
outcomes; and

(d) any matters that the FWC considers relevant.”

[26] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained
the provisions as follows:

“New section 789FF – FWC may make orders to stop bullying

119. New subsection 789FF(1) empowers the FWC to make any order it considers
appropriate to prevent a worker from being bullied at work by an individual or group

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of individuals. Before an order can be made, a worker must have made an application
to the FWC under new section 789FC and the FWC must be satisfied that the worker
has been bullied at work by an individual or group of individuals. There must also be a
risk that the worker will continue to be bullied at work by the individual or group.
Orders will not necessarily be limited or apply only to the employer of the worker who
is bullied, but could also apply to others, such as co-workers and visitors to the
workplace. Orders could be based on behaviour such as threats made outside the
workplace, if the threats relate to work.

120. The power of the FWC to grant an order is limited to preventing the worker
from being bullied at work, and the focus is on resolving the matter and enabling
normal working relationships to resume. The FWC cannot order reinstatement or the
payment of compensation or a pecuniary amount.

121. Examples of the orders that the FWC may make include an order requiring:

 the individual or group of individuals to stop the specified behaviour;
 regular monitoring of behaviours by an employer;
 compliance with an employer’s workplace bullying policy;
 the provision of information and additional support and training to
workers;
 review of the employer’s workplace bullying policy.

122. New subsection 789FF(2) provides that, when considering the terms of the
order, the FWC can take into account any factors that it considers relevant, but must
have regard to the following (to the extent that the FWC is aware):

 any final or interim outcomes of an investigation into the matter that is
being undertaken by another person or body;
 any procedures available to the worker to resolve grievances or
disputes;
 any final or interim outcomes arising from any procedures available to
the worker for resolving grievances or disputes.

123. These factors may be used by the FWC to frame the order in a way that has
regard to compliance action being taken by the employer or a health and safety
regulator or another body, and to ensure consistency with those actions.”8

[27] Having regard to the provisions of the FW Act, there are two major prerequisites to the
making of orders in anti-bullying matters. Firstly, a finding that the applicant worker, or a
group of workers to which the applicant belongs, has been bullied at work by an individual or
a group of individuals; and secondly, that there is a risk that the applicant worker will
continue to be bullied at work by the individual or group concerned.

[28] We note that the Deputy President did not ultimately deal with the first of these
prerequisites as the applications were discontinued. However, the second element became
relevant in the lead up to the hearing and the discontinuances.

[29] Given the terms of the FW Act, where there is no risk that the applicant worker will
continue to be bullied at work by the individual or group concerned, there is no reasonable

[2016] FWCFB 2367

prospect that the s.789FC application can ultimately succeed.9 Equally, where such a risk is
found, the Commission may make an order preventing the worker from being further bullied
by that individual or group.

[30] Accordingly, in the original matters, the propositions that the three Appellants were
either no longer on the committee of the Collie Chamber, or that the Applicants were no
longer having any dealings with them whilst they were at work, were relevant to whether at
the point of the hearing there was a future risk that might lead to orders being made.

[31] The Appellants have also contended that the anti-bullying applications were not made
for a proper purpose in that they sought that the Appellants be removed from the committee of
the Collie Chamber. This, they suggest, was beyond the proper scope of the anti-bullying
provisions and any order that might be made by the Commission.

[32] We have set out the terms of s.789FF above. In our view, the Commission is given
wide powers to make preventative orders it considers appropriate. These powers must be
informed by, but not necessarily limited to, the prior unreasonable conduct as found.
However, any orders must be directed towards the prevention of the worker being bullied at
work in the future by the individual or group concerned, be based upon appropriate findings,
and have regard to the considerations established by s.789FF(2) of the FW Act.

[33] Subject to the above, and the constraint that an order cannot be made requiring
payment of a pecuniary amount, the making of an order is a matter of discretion to be
exercised judicially in the circumstances of each case.

[34] It is not necessary for us to determine whether such an order might include the
purported removal of committee members from an elected committee of an incorporated
association. This would involve a variety of considerations including the potential impact of
the laws under which the association was incorporated and the nature of the Commission’s
role in making orders in this jurisdiction. It may be, for instance, that an order of the
Commission could require an association to take the necessary disciplinary procedures under
its rules against a committee member found to have bullied a worker. It is sufficient presently
for us to note that the parameters of s.789FF(2) have not yet been fully explored by the
Commission and that broad powers are provided. Further, s.599 of the FW Act provides that
the Commission is not required to make a decision in relation to an application in the terms
applied for, except as provided for in the FW Act itself.

Ground 1 – Error in the exercising of jurisdiction

[35] The Appellants assert that the Deputy President erred in the exercise of his discretion
not to award costs because he considered irrelevant matters and made errors of fact relevant to
his conclusions.

[36] As a matter of convenience, we have initially dealt with the Deputy President’s
conclusions about s.611 of the FW Act. This section has been set out above at paragraph 15.

[37] The asserted irrelevant matters went to the Deputy President’s reference to the
Associations Incorporations Act 1986 and to a reference to the Collie Chamber meeting
minutes. These references are primarily made in the background to the Deputy President’s
decision.10 In referring to this background material we are not satisfied that the Deputy

[2016] FWCFB 2367

President was in error or that the references were erroneous in themselves. This part of the
Deputy President’s decision simply explains the background circumstances. It does not reflect
the specific reasons for his ultimate conclusions. We are not satisfied that the Deputy
President’s later reference11 to the membership of the Collie Chamber management committee
at the time the s.789FC applications were made, was incorrect or that this represented an
irrelevant consideration.

[38] In this respect we note that, before setting out his conclusions about s.611 the Deputy
President referred to a number of authorities relating to the power to award costs.12 These
authorities clearly establish the preconditions about which the Fair Work Commission (FWC)
must be satisfied before it can exercise the discretion to award costs. The Deputy President
was not satisfied that the s.789FC applications were made without reasonable cause or that, at
the time they were made, they had no reasonable prospect of success.13 Furthermore, his
conclusion that the discontinuance of the applications on 20 August 2015 was entirely
appropriate meant that the prerequisite for the exercise of the discretion to award costs had not
been met.

[39] The Deputy President then addressed the question of whether the applications were
filed vexatiously. Again, his considerations were informed by reference to established
authorities.14 He concluded, on the evidence of the Applicants, that at the time they made the
applications they had a strong belief that their applications were genuine and that the
applications were not made vexatiously.15

[40] We are satisfied that the Deputy President correctly recited and applied s.611 and that
the position he adopted relative to the application of that section was consistent with
established authorities. In terms of the submissions put on the appeal, we see no inconsistency
relative to the approach applied by the Deputy President to that which has been adopted in
other matters. In the circumstances of this matter, s.611 directs attention to the time the
application was made. As a consequence, the Deputy President was correct in directing
attention to the circumstances under which the applications were made rather than later
events. This is clear from numerous authorities. Indeed, the Deputy President referred to the
Full Bench in Church v Eastern Health.16 In so far as that decision dealt with the proper
construction of s.611, it has even more recently been endorsed by a Full Bench in
Keep v Performance Automobiles.17

[41] The Appellants assert that the Deputy President failed to provide appropriate reasons
for his conclusion that Ms Woods and Mr Jackson had demonstrated to his satisfaction that
the applications were made with reasonable cause and that it was not reasonably apparent that
they had no reasonable prospect of success.18 We think that, fairly read, the basis for his
conclusions is clear. The Deputy President clearly recognised that the s.789FC applications
were made at a time when there was significant turmoil within the Collie Chamber. The
Deputy President noted Ms Woods’ allegations of repeated bullying behaviour.19 That
conclusion is supported by Ms Woods’ evidence.20 The Deputy President also recorded the
concerns about alleged intimidating tactics expressed by Mr Jackson.21 The Deputy President
also took account of the evidence of Mr Yates relative to his attendance at a Collie Chamber
meeting. These findings underpin his conclusions about the extent to which he was satisfied
that the circumstances did not meet the essential requirements for consideration of a costs
order.

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[42] The Deputy President then expanded on his conclusions about the circumstances under
which the applications were made. He stated:

…

[43] In reaching his conclusions in this respect, the Deputy President was entitled to prefer
some evidence over that of others, and this is not indicative of appealable error. We are
satisfied that these conclusions were open to him on the evidence, that they did not involve a
misconstruction of that evidence and reflected an appropriate consideration of the matters in
s.611, about which he had to be satisfied.

[44] There is an important distinction made by the Deputy President between the making of
an application of this nature and any finding relative to whether there was actually bullying
behaviour within the meaning of the FW Act. No such finding was made, or required to be
made in these matters. The Appellants argue that the Deputy President erred in his description
of their position in the costs matter.23

“MR CHURCHES: Well, I believe that that's probably the appropriate thing to do at
this point in time. The whole thing is very voluminous. It scarcely, probably, does
justice to the examination of the mass of evidence that has come forward. Some of it
is not really evidence, it is just packing and filling, but it has been very hard to distil
out just where we are. We have made the point consistently that we wanted a proper
hearing. I'm disappointed that - - -

THE DEPUTY PRESIDENT: Forget about that. I mean, you've made the point many
times that they're the applicants, it is their case.

MR CHURCHES: Well, that's right, and I was about to say that, and it was out of our
control. The - - -

[2016] FWCFB 2367

THE DEPUTY PRESIDENT: That's not your fault.

MR CHURCHES: Yes. The - - -

THE DEPUTY PRESIDENT: The day - I can remember distinctly your solicitor
asked for an adjournment on the day, so I'm not sure how you can say you wanted a
full hearing on the day, but anyway.

MR CHURCHES: Well, it's interesting, but you could imagine it in our case, we have
a solicitor recruited to carry out the task. We wanted some justice, and it was out of
our control in withdrawing. And I sat at a table there and said - - -

THE DEPUTY PRESIDENT: Your solicitor wanted (1) mediation; and (2) wanted to
have the matter adjourned.

MR CHURCHES: Sorry?

THE DEPUTY PRESIDENT: Your solicitor asked me to adjourn the matter. Do you
recall that?

MR CHURCHES: She did, and I know why she did.

THE DEPUTY PRESIDENT: Sorry?

MR CHURCHES: I know why she did.

THE DEPUTY PRESIDENT: For whatever the reason, you can't then turn around and
say you wanted a full hearing on the day when you asked for an adjournment.

MR CHURCHES: Well, what she was asking for an adjournment for is that she had
only newly been put on the case.

THE DEPUTY PRESIDENT: Yes, that may be true.

MR CHURCHES: And that's why she wanted - not that she wanted to discontinue,
but she - - -

THE DEPUTY PRESIDENT: She can't discontinue.”24

[45] In terms of the asserted errors of fact, we note that a jurisdictional objection had been
foreshadowed in the response to the application through an email sent to the Deputy
President’s chambers.25 That objection was referred to in the following terms:

“We believe that Fair Work does not have jurisdiction. Consistent with the test outlined
in the ‘Fair Work Commission Benchbook Anti-Bullying’, the Collie Chamber of
Commerce and Industry Inc is not a constitutionally covered corporation and it not a
trading corporation. Consistent with our view that these complaints are an abuse of
process, is the destructive effect they have had on the Committee of a volunteer
organisation and its Committee members. The complaints have been used as a weapon
to inflict damage on the democratic rights of the association and its members. The

[2016] FWCFB 2367

association runs the risk of insolvency and, in fact, Richard Jackson has warned
Committee members that if they act against him he will ‘tear the place down as he
goes out’. If the former President Erik Mellegers had not dishonestly concealed the
initial correspondence to the Committee from the Fair Work Commission, this matter
may not have proceeded. The Collie Chamber of Commerce and Industry Inc has
therefore been denied the opportunity to challenge jurisdiction from the outset and the
Fair Work Commission has been misled.”26

[46] It was not until the commencement of the initial s.789FC hearing on 20 August 2015
that the basis for this objection was formally made out. In this respect we have considered the
Deputy President’s statement, that:

“The jurisdictional objection had not yet previously been raised in the responses filed or
the written submissions of the respondent.”27

[47] This needs to be considered in the context of the concerns he expressed early in the
hearing on the initial s.789FC applications.28 Following advice that there was a jurisdictional
objection to the applications, Deputy President Bull made it clear that he had requested
written submissions dealing with issues of that nature, and that these had not been provided to
him. In this context, we are not satisfied that the Deputy President’s decision is in error. In
any event, we are not satisfied that this element of the decision is of any significance or
relevance to his substantive findings on the costs issues.

[48] We are also satisfied that, in the costs matter the Deputy President did not
mischaracterise the Appellants’ position. We think that position is best summarised on the
basis that before the initial hearing the Appellants had foreshadowed an objection to the
matter proceeding on the basis that the Collie Chamber was not a constitutionally-covered
corporation. That objection was formally put by counsel for the Appellants at the
commencement of the initial hearing. Mediation and an adjournment were requested. The
bullying applications were subsequently withdrawn. The manner in which the costs
application was conducted by the Appellants was repeatedly directed at arguing the merits of
the bullying applications rather than the costs application itself. We think it only fair that the
Deputy President’s decision be viewed in this context.

[49] The Appellants assert that the Deputy President mischaracterised their position in the
costs hearing. In the costs hearing the Appellants stated:

“MR CHURCHES: Well, maybe I got it wrong. Now, one of the things that the
Deputy President has highlighted is that you can go ahead, if you chose, with your
complaint. My question to you is, and at the last hearing on 20 August, we said "Go
for it, we would like you to go ahead", I would like you to go ahead. We're at this
hearing today without legal representation doing this all - if you went ahead - had gone
ahead with your complaint, we would have had legal representation. And I put it to
you that you've made all these statements about how disgraceful and disgusting we all
are, the miniscule brain power of some of the committee members - - -”29

[50] In his decision, the Deputy President stated:

“[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

[2016] FWCFB 2367

in contrast to those made by their legal representative on the day asking for the matters
to be dismissed.”30

[51] We do not consider that the Deputy President’s conclusion in this respect reflects
error. Indeed, it is apparent from our consideration of the costs hearing that the Appellants
misconstrued the function of that hearing so as to repeatedly attempt to address the merits of
the s.789FC applications.

[52] We are not persuaded that, in reaching his decision, the Deputy President
misconstrued the import of the definition in s.789FD. In his decision,31 he explicitly states
that he is not determining whether or not Ms Woods and Mr Jackson were bullied at work.
Fairly read, this part of his decision is clearly directed at his consideration of the factors in
s.611.

[53] The assertion that the Deputy President did not order Ms Woods’ and Mr Jackson’s
evidence to be provided in a legible form go to an allegation that the Deputy President did not
afford the parties’ natural justice in the course of the proceedings. We have addressed this
later in this decision.

[54] Whilst we have considered all of the authorities referred to us, we do not consider that
these decisions establish error on the part of the Deputy President. In most instances the
authorities to which we have been referred have been applied out of context. For instance, the
Appellants’ reliance on the decision in Attorney General v Wentworth32 is, in our view,
misplaced. That matter dealt with an application, made under the Supreme Court Act 1970 for
an order to stop Ms Wentworth from instituting or continuing any legal proceedings. In his
decision, Roden, J detailed the circumstances surrounding the many matters pursued by
Ms Wentworth and considered the concept of vexatious legal proceedings in the context of
whether these proceedings had been habitually and persistently pursued.33 Notwithstanding
this important distinction, we see no substantive difference in the concept of “vexatious”
adopted in Wentworth and the principles adopted by the Deputy President in this matter.

[55] Given our earlier observations about the anti-bullying jurisdiction and the nature of the
remedy being pursued by the applicants, we consider that the Deputy President’s finding that
the applications were not launched vexatiously, was clearly open to him.

Ground 2 – Jurisdictional error

[56] The Appellants assert that the Deputy President’s decision was attended by a number
of jurisdictional errors.

[57] Firstly, it is contended that the decision did not properly follow the approach in
Craig v South Australia.34

[58] That contention is misconstrued. In Craig the High Court addressed matters associated
with the exercise of judicial discretion within jurisdiction. No proper basis for the assertion
that the Deputy President’s decision was inconsistent with the conclusion in Craig has been
made out to us.

[59] We do not consider that the Deputy President made a determination involving the
Associations Incorporations Act 1986. He referred to that Act35 in summarising the

[2016] FWCFB 2367

submissions made by the Appellants. Not only do we fail to see error in that summary, but the
net effect of the Deputy President’s observations in this respect does not materially affect his
ultimate conclusions.

Ground 3 – Reliance on irrelevant considerations

[60] The Appellants contend that the Deputy President relied on irrelevant factors
represented by his consideration of:

1. the Associations Incorporation Act 1986; and

2. “Old committee” meeting minutes.

[61] Again, we think the Appellants are confusing the Deputy President’s conclusions on
this costs issue with a determination of the substantive applications. We do not consider that
his conclusions were predicated on either the Associations Incorporations Act nor on the
meeting minutes. The Deputy President concluded that at the time the s.789FC applications
were made, the Collie Chamber had a dysfunctional management committee that was racked
with division.36 We are satisfied that the evidence before him supported that conclusion.

[62] The Appellants argue that the Deputy President erred in not giving sufficient weight to
various other factors. These included:

1. matters considered in the 20 August initial hearing and which went to the
merits of the s.789 FC applications; and

2. the damage, shame and embarrassment caused by the applications.

[63] This argument is misplaced. We are not satisfied that the Deputy President erred in his
considerations of the initial s.789FC proceedings. Having reviewed those proceedings, we are
not satisfied that he overlooked anything of significance or that he mischaracterised any
matter of relevance to the costs issues.

[64] In terms of the contention that the Deputy President should have given more weight to
the contended damage, shame and embarrassment caused by the applications, the Appellants
are plainly wrong. The Deputy President did not and could not make findings about the extent
to which the bullying applications were, or were not, made out. The Deputy President was at
pains to point out in the hearing that he was required to address only the costs application. In
this context it was simply not open to the Deputy President to determine that the Appellants
suffered damage, shame or embarrassment as a result of the initial applications because that
would have required findings on the initial applications which were, in any event, withdrawn.
To the extent that this aspect is relied upon to support the notion that the original applications
were made vexatiously, or without reasonable grounds, we have dealt with this elsewhere in
this decision.

[65] At this point we should observe that the Appellants elected to provide evidence to the
Deputy President in the course of the costs application which we think, any fair minded
observer would conclude, showed the Collie Chamber to be dysfunctional at the time in
question.

[2016] FWCFB 2367

Ground 4 – The decision was unreasonable

[66] The Appellants contend that the Deputy President erred in accepting certain evidence,
or in doing so without placing caveats or limitations on that evidence. We are not satisfied
that the manner in which the Deputy President took evidence in the costs matter reflected
error.

[67] The Appellants contended that:

“No reasonable decision-maker would have instructed the respondents that they have an
onus of procedural fairness to advise the applicants to withdraw their complaint as it
had no reasonable prospect of success. There is no such obligation. Transcript
PN222-64.”37

[68] In this respect the Deputy President’s comments in the hearing need to be seen in a
more complete context:

“THE DEPUTY PRESIDENT: Yes. But you never said to them - you never put them
on notice and said: "Well, if that's what you believe, withdraw your claim." You
didn't put them on notice of that at all. You continued to maintain that they were
wrong.

MR CHURCHES: And we still do.

THE DEPUTY PRESIDENT: Well, you can't have it both ways.

MR CHURCHES: Well, it's not our complaint, it's their complaint.

THE DEPUTY PRESIDENT: No, but your defence is you want costs for an
application that was withdrawn on the basis that they argued that they are the
committee and you're not the committee. And you say they are not the committee and
you are the committee.

MR CHURCHES: With respect, Deputy Commissioner, we didn't lodge the
complaint, they did.

THE DEPUTY PRESIDENT: Yes, I understand that. You don't need to tell me that
again.

MR CHURCHES: It's not in our power.

THE DEPUTY PRESIDENT: But you didn't put them on notice and said: "If that's
your application, if you think that we're not the committee, withdraw your complaint.
You never told them that. That's part of the procedural fairness of any application, to
put people on notice of what your position is.”38

[69] Notwithstanding these observations, we have reviewed the costs decision and are not
satisfied that it was founded on evidence that was improperly before the Deputy President. It
appears to us that the Deputy President was clearly able to make the following statement
about the evidence:

[2016] FWCFB 2367

“[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.”39

Ground 5 – The decision was attended by legal unreasonableness

[70] The Appellants raise a number of arguments under this ground. They repeat the earlier
argument in relation to the time at which the Deputy President was appraised of their
jurisdictional objection. We have already dealt with that issue.

[71] The Appellants assert that the Deputy President was in error in not assessing the costs
application against s.400A of the FW Act. Section 400A provides as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under
this Part (the first party) for costs incurred by the other party to the matter if the FWC
is satisfied that the first party caused those costs to be incurred because of an
unreasonable act or omission of the first party in connection with the conduct or
continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to
the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[72] The Appellants contend, in effect, that this provision should be applied broadly to
matters under the FW Act. This included the proposition that s.400A should be construed
broadly to establish a time limit for costs applications under the FW Act.

[73] As the Deputy President observed in his decision, s.400A is within Part 3-2 of the
FW Act which applies to unfair dismissal claims. That section cannot be read as extending to
applications made pursuant to s.789FC, which are not matters within that Part of the Act. The
absence of any time limit in s.611 does not provide a licence to apply s.400A to matters
beyond Part 3-2 of the FW Act.

[74] To the extent that the Appellants reiterate earlier concerns about the operation of
s.611, we have already addressed these arguments. Simply put, we discern no error in the
Deputy President’s manner of construction of s.611.

[75] The Appellants contend that the Deputy President failed to give adequate reasons for
his conclusion that the applications were made with reasonable cause. A fair reading of the
Deputy President’s decision does not support this position. The paragraphs that precede that
conclusion clearly explain the basis for it.40

[2016] FWCFB 2367

[76] The Appellants again assert that the Deputy President was in error in recording Ms
Woods’ position. In this respect, we think that the evidence given by Ms Woods clearly
permits his observations in this respect.

[77] The Appellants assert that the Deputy President was in error in his consideration of the
costs issue relative to the withdrawal of the initial applications.41

[78] In this respect, the manner in which the Appellants advanced their case in the costs
proceedings before the Deputy President lent itself to numerous interpretations. As we have
already indicated we see no appealable error in the Deputy President’s decision in this regard.

[79] We note that the Appellants have repeated various earlier arguments within this
asserted ground. We have already addressed these issues.

[80] The Appellants contend that the Deputy President’s decision was illogical or irrational
and that it was not the kind of decision intended by the FW Act. In these respects we are not
satisfied that any illogicality or irrationality has been made out. Further, it seems to us that the
caution the Deputy President applied to his consideration of the costs application was entirely
consistent with both the FW Act and the various decisions to which he referred relative to
s.611. For reasons previously given, we are not satisfied that the assertion that the remedies
sought in the initial s.789FC applications mean that they were made vexatiously or without
reasonable cause, or that it should have been apparent to the Applicants that they had no
reasonable prospect of success. We also note that the Appellants contended that Mr Jackson’s
application was not appropriate as it relied on conduct directed, in the main, towards
Ms Woods. However, s.789FD of the FW Act permits an application to be made where an
individual or group of individuals repeatedly behaves unreasonably towards a worker or
group of workers of which the worker is a member. Mr Jackson and Ms Woods were part of a
group of workers employed by the Collie Chamber.

Ground 6 – The decision was based on irrelevant evidence and relied on suspicion or
speculation

[81] In this respect the Appellants assert that various elements of the Deputy President’s
decision were not able to be founded on the evidence before him or lacked an adequate
explanation. We have reviewed each of the elements identified in this ground. In each
instance we are satisfied that these observations or conclusions were available to the Deputy
President on the evidence before him and that, to the extent that they reflected findings, these
findings were adequately explained. We should note that an important part of the role of the
FWC is to make findings which necessitate the preference of some evidence to that of others.
The fact that the Deputy President did this simply confirms the exercise of the discretion
available to him. It does not establish error.

Ground 7 – There was no proper opportunity to cross examine witnesses

[82] The Appellants’ submissions in this respect are not easily reconciled with this ground.
Notwithstanding this, we have considered each of the matters raised with us.

[83] The Appellants assert that the Deputy President ignored or misinterpreted ss.400A,
611, 674 and 676 of the FW Act. Consistent with the reasons we have already given, we see

[2016] FWCFB 2367

no error in the Deputy President’s decision relative to the application of the requisite parts of
the FW Act.

[84] The Appellants make a serious contention that the Deputy President conducted the
hearing in a biased and unfair manner. The Appellants contend that this asserted bias extended
to permitting persons in the courtroom during the costs hearing to intimidate witnesses. Direct
evidence to support these allegations has not been made out. A review of both the transcript
and the sound file of the costs proceedings does not disclose any behaviour which we could
regard as abnormal so as to be indicative of inappropriate conduct on the part of the Deputy
President. We are not satisfied that the Deputy President behaved in any inappropriate
manner.

[85] The Appellants assert that the Deputy President was in error in failing to dismiss the
s.789FC applications pursuant to s.587 of the FW Act at the initial hearing. This contention is,
bluntly, fanciful. The hearing of the initial s.789FC applications had commenced and matters
of substance were advanced by both parties. In the context of a change of circumstances, the
applications were withdrawn and we consider that it was simply not open to the Deputy
President to dismiss them at that stage on the basis of a contention, which is now put, that
they had no reasonable prospect of success.

Ground 8 – There was a failure to deal with the matter under the FW Act and the Fair
Work Commission Rules

[86] The Appellants assert both actual bias and that the Deputy President had an obligation
to disclose his previous relationship with the Chamber of Commerce and Industry of Western
Australia so as to give them the opportunity to argue an apprehension of bias.

[87] The Appellants assert that the Deputy President had a conflict of interest which
reflects his previous employment, at some time in the past, by the Western Australian
Chamber of Commerce and Industry (WACCI). Further, that the Deputy President was
required to disclose that conflict of interest and should have excused himself from considering
the matter. This is said to arise from the fact that the Applicants at one point took advice from
a legal firm established by the WACCI and that the Deputy President, at some stage not
immediately prior to his appointment, was involved with that firm. There is no suggestion that
the Deputy President was associated in any way with that advice.

[88] We observe that the test for ostensible or apprehended bias can be formulated in a
number of ways but is in substance whether, in the circumstances of the case, a fair-minded
lay observer might reasonably apprehend that the Member of the Commission might not bring
an impartial and unprejudiced mind to the resolution of the matter the Commission is required
to decide. The test requires that the apprehension of bias be objectively reasonable.42 In
applying the test there are also particular features of the industrial jurisdiction which should
be borne in mind. Included in those is the circumstance that Commission members have a
familiarity with the industrial affairs of the industries to which they are allocated and with the
parties.43 We are satisfied that the circumstances here do not meet the requirements of that
test.

[89] We are not satisfied that the Deputy President exhibited bias or that any coherent basis
for these assertions has been made out. We are not even satisfied that a clear link between the
interests of the Collie Chamber and those of the WACCI. We do not think the fact that, at

[2016] FWCFB 2367

some time in the past, the Deputy President worked for the WACCI or its legal arm has, or
could reasonably be seen to have, anything to do with what must be described as a dispute
about matters relating to the management of the Collie Chamber. In reaching this conclusion
we have noted that, not only was no issue raised in relation to an apprehension of bias at the
costs hearing,44 but the manner in which the Deputy President conducted the hearing appears
to us to demonstrate clear impartiality. It is a fact that members of the FWC come from a
variety of diverse backgrounds. The nature of these appointments gives the FWC the
background experience to deal with the many different circumstances brought before it. There
is nothing unique or improper about the Deputy President’s background relative to this matter.
Further, in the circumstances of this matter, we do not regard the Deputy President as having
been under any obligation to detail to the parties the nature of appointments which he may
have held some time in the distant past.

[90] The Appellants have repeated their assertion that the Deputy President was in error in
not dismissing the initial s.789FC applications pursuant to s.587 of the FW Act at the hearing
on 20 August 2015. We have earlier rejected this assertion.

[91] The Appellants assert that the Deputy President presided over the costs hearing in an
improper manner. Having reviewed these proceedings, and consistent with our earlier
observations, we are not satisfied that the approach adopted by the Deputy President was
anything other than fair and impartial and, given the nature of the proceedings before him,
extremely patient. This extends to the manner of the Deputy President’s consideration of the
voluminous exhibits and material before him and the form in which these were provided.

[92] The Appellants argue that the Deputy President wrongly asserted that they had an onus
to advise Ms Woods and Mr Jackson to withdraw the complaint as it had no reasonable
prospect of success. In this respect the Appellants have both misconstrued the Deputy
President’s observations and have taken his comments out of context. Again, consistent with
our earlier observations, a proper consideration of the transcript of those proceedings45

demonstrates that the Deputy President simply pointed out to Mr Churches that, in the context
of a dispute over the proper constitution of the Collie Chamber management committee,
Ms Woods and Mr Jackson were not put on notice that they should withdraw their s.789FC
applications on that basis.

[93] To the extent that the Appellants argue that the Deputy President was in error in
seeking to clarify to whom they sought that any costs should be payable, this cannot constitute
error. Equally, it is clear from the costs proceedings that the Deputy President went to some
pains to repeatedly direct Mr Churches’ attention to the purpose of the hearing in as much as
this related to the costs application and was not an opportunity to conduct a hearing on the
s.789FC applications themselves.

[94] The Appellants assert that witnesses in support of their costs application were harassed
and intimidated and that the Deputy President did not stop this harassment. We have already
observed that this allegation has not been made out.

Ground 9 – Actual bias

[95] We have already addressed the complaints made under this ground.

Submissions made subsequent to the appeal hearing

[2016] FWCFB 2367

[96] In reaching our conclusions in this matter we have had regard to the written
submissions made by Mr Jackson on 18 March 2016.

[97] We have also had regard to the written submissions made by the Appellants on
4 April 2016. In those submissions the Appellants appear to have misunderstood the nature of
the invitation extended to them and have substantially repeated their earlier submissions.
These submissions also appear to demonstrate a lack of understanding about the nature of the
appeal itself. Notwithstanding this, the following findings refer to these additional
submissions.

[98] No basis for an appeal can be derived from errors in the transcription process. The
4 April 2016 submissions do not disclose any further misunderstanding or misapplication of
s.611 on the part of the Deputy President. Additionally, these further submissions do not
disclose error in terms of the Deputy President’s consideration of background matters,
including the disputed membership of the Collie Chamber management committee.

[99] The appeal is not brought against the initial proceedings before the Deputy President
on 20 August 2016, but in any event, we see no error relative to the Deputy President’s
conduct of that matter.

[100] The 4 April 2016 submissions do not establish an error relative to the Deputy
President’s understanding of the anti-bullying jurisdiction. Additionally, the Deputy
President’s conduct of the matter and his decision are, in our opinion, consistent with the
decision of Hampton, C in Ms SB46 and with many other decisions of the Commission.

[101] In their 4 April 2016 submissions, the Appellants provide further submissions and
material in support of their position that the Deputy President improperly conducted the
proceeding so as to allow witnesses to be intimidated. As we have already indicated, we are
not satisfied that this assertion has been made out. We are not inclined to accept this
additional material into evidence but do note particularly, that the statement signed by
Mr Hall does not establish that he was bullied by the Deputy President or that the evidence he
gave was altered as a consequence of the Deputy President’s actions. We are not satisfied that
the other proposed additional statements should be admitted as part of this appeal and we note
that they would not of themselves indicate any form of impropriety on the part of the Deputy
President in hearing and making the s.611 costs decision.

[102] Finally, to the extent that the Appellants seek to repeat their submissions about
s.400A, we have already addressed this issue.

Conclusion

[103] For the reasons that we have detailed, we are not satisfied that the Appellants have
established that the Deputy President’s decision was attended by jurisdictional error or that it
involved error in the exercise of the jurisdiction available to him. No basis for a grant of
permission to appeal has been established. Indeed, based upon the material that is now before
the Commission, we would have made the same decision.

[2016] FWCFB 2367

[104] Accordingly, permission to appeal is refused and the appeal is dismissed.

Appearances:

D Churches and G Churches for the Appellants.

R Woods on her own behalf.

R Jackson on his own behalf.

Hearing details:

2016.
Perth:
February 26.

Printed by authority of the Commonwealth Government Printer

Price code C, PR579070

1[2015] FWC 6620 (25 November 2015) at [35] – [37]
2 Ibid [55] – [58]
3 Ibid [61] – [65] (citations omitted)
4 House v The King (1936) 55 CLR 499
5 Ibid 504 – 505
6 Transcript, 13 November 2015, PN 136 – 138
7 s.789FC(2) of the FW Act states a worker has the same meaning as in the Work Health and Safety Act 2011, but does not

include a member of the Defence Force. Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an

individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an
apprentice, a trainee, a student gaining work experience or a volunteer.
8 Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) 119 – 123
9 See for example, the discussion of the earlier authorities in Bassanese [2015] FWC 3515 (5 June 2015) and the most recent
decision of the Full Bench in Atkinson v Killarney Properties Pty Ltd and another [2015] FWCFB 6503 (14 October 2015)
10 [2015] FWC 6620 (25 November 2015) at [15] – [18]
11 Ibid [55]
12 Ibid [47] – [54]
13 Ibid [58]
14 Ibid [60]

HIE PAIN WORK CO FAIR SIDENT ALLA FOISSHA EAL O Ht SENIOR DEPUTY

[2016] FWCFB 2367

15 Ibid [61]
16 [2014] FWCFB 810 (4 February 2014)
17 [2015] FWCFB 1956 (23 March 2015) at [17]
18 [2015] FWC 6620 (25 November 2015) at [58]
19 Ibid [39] – [40]
20 Transcript, 13 November 2015, PN 2018 – 2189
21 [2015] FWC 6620 (25 November 2015) at [41]
22 Ibid [61] and [63] – [64] (citations omitted)
23 Ibid [57]
24 Transcript, 13 November 2015, PN 2370 – 2387
25 Email from D. Churches to Commissioner Bull’s chambers, dated 19 June 15
26 Ibid, para 3
27 [2015] FWC 6620 (25 November 2015) at [10]
28 Sound recording, 20 August 2015, 9.15 a.m.
29 Transcript, 13 November 2015, PN 1838
30 [2015] FWC 6620 (25 November 2015) at [33]
31 Ibid [62]
32 (1998) 14 NSWLR 481, 491
33 Attorney General v Wentworth (1988) 14 NSWLR 481, 488
34 (1995) HCA 58:1995 184 CLR 163
35 [2015] FWC 6620 (25 November 2015) at [15] – [17]
36 Ibid [64]
37 Exhibit A1, para 4.4
38 Transcript, 13 November 2015, PN 222 – 230
39 [2015] FWC 6620 (25 November 2015) at [27]
40 See the requirements for proper reasons set out in Toll Holdings Ltd v Johnpulle [2016] FWCFB 108
41 [2015] FWC 6620 (25 November 2015) at [57]
42 See Johnson v Johnson (2000) 201 CLR 488 at 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Applied

in Commonwealth Bank of Australia v A Heap, Print PR920785, at para 14
43 See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia – Communications Division v Australian Postal Corporation [2009] AIRCFB 145 at [10], [11]
44 See for example, Johnson v Johnson (2000) 201 CLR 488, 492 and Livesey v The NSW Bar Association (1983) 151 CLR

288, 299 – 300
45 Transcript, 13 November 2015, PN 222 – 234
46 [2014] FWC 2104 (12 May 2014)

Churches, David & Smargiassi, Nic and Another v Jackson, Richard & Woods, Rebecca - [2016] FWCFB 2367

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