1
Fair Work Act 2009
s.604 - Appeal of decisions
Matthew Gugiatti
v
SolarisCare Foundation Ltd
(C2015/3759)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS
SYDNEY, 11 AUGUST 2016
Appeal against decision [2015] FWC 2447 of Commissioner Williams at Perth on 9 April
2015 in matter number U2014/11321.
Introduction and background
[1] On 30 July 2014 Mr Matthew Gugiatti lodged an application pursuant to s.394 of the
Fair Work Act 2009 (FW Act) for an unfair dismissal remedy against his former employer,
SolarisCare Foundation Ltd (SolarisCare). In response to the application, SolarisCare
contended that the Commission did not have jurisdiction to hear the matter because, firstly,
Mr Gugiatti was engaged for a specified period for the purposes of s.386(2)(a) of the FW Act
and had not been dismissed and, secondly, his employment did not last for the minimum
employment period in s.382 necessary to sustain an unfair dismissal remedy application
against a small business employer.
[2] In a decision issued on 9 April 20151 (Commissioner’s decision), Commissioner
Williams upheld both of SolarisCare’s jurisdictional objections and dismissed the application.
On 30 April 2015 Mr Gugiatti filed a notice of appeal against this decision pursuant to s.604
of the FW Act. Under s.604, permission was required for this appeal to succeed.
[3] On 5 February 2016, this Full Bench issued a decision2 (appeal decision) in which Mr
Gugiatti was refused permission to appeal. The appeal decision described procedural
difficulties which arose in the conduct of Mr Gugiatti’s appeal as follows:
1 [2015] FWC 2447
2 [2016] FWCFB 280
[2016] FWCFB 2478
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2478
2
“[2] On 30 April 2015, Mr Gugiatti filed a notice of appeal against the Commissioner’s
decision. The appeal was originally listed to be heard in June 2015, but was adjourned
to 19 January 2016 at the appellant’s request, on medical grounds.
[3] On 15 January 2016, Mr Gugiatti emailed the Commission to request a further
adjournment on medical grounds. On 18 January 2016, he was advised that his
application would not be granted and that the matter would proceed as scheduled at
2:00pm Eastern Standard Time on 19 January 2016.
[4] On 19 January 2016, approximately five minutes before the hearing was due to
commence, Mr Gugiatti provided a statutory declaration outlining further medical
grounds on which he contended the matter should be adjourned again, for an
unspecified period. We considered the statutory declaration filed in support of the
adjournment application. We decided to refuse the appellant’s application on the
grounds that we were not satisfied that the appellant was medically incapable of
appearing before the Commission and advancing submissions in support of his appeal.
The appellant was advised accordingly and the matter was stood over to the next day.
[5] The hearing proceeded on 20 January 2016. There was no appearance for Mr
Gugiatti.
[6] Mr Gugiatti has not complied with directions to provide an outline of submissions
in support of his appeal before the hearing. The only material we have before us in
support of his appeal, therefore, is his notice of appeal itself. Several of the grounds of
appeal relate to allegedly improper actions by SolarisCare, e.g. failing to produce
documents and submitting evidence close to the hearing date at first instance. Mr
Gugiatti also contends that the Commissioner made errors of fact that led to him
dismissing the application on jurisdictional grounds (e.g. finding that SolarisCare was
a small business), and that the Commissioner did not adequately consider the impact
his ill health had on his ability to prepare for the first-instance hearing.”
[4] Our reasons for the refusal of permission to appeal were as follows:
“[11] Nothing in the information available to us indicates that it would be in the public
interest to grant Mr Gugiatti permission to appeal. We accept SolarisCare’s
submission that many of the grounds of appeal advanced are not directed to the
Commissioner’s reasons for his decision. Those which do relate to those reasons
appear to be unsupported allegations. There is no issue of importance or general
application arising from Mr Gugiatti’s application at first instance. The
Commissioner’s decision is an orthodox application of the provisions of the FW Act
which confer jurisdiction on this Commission to award unfair dismissal remedies.
Moreover we are satisfied that the Commissioner has not made any error in the
application of those principles to the facts as presented to him.”
[5] On 19 February 2016 SolarisCare made an application for its costs of the appeal. The
application is made pursuant to ss.611(2) and 400A of the FW Act.
Applications for adjournment of the costs application
[2016] FWCFB 2478
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[6] On receipt of SolarisCare’s costs application, a direction was made requiring that
SolarisCare file and serve its submissions and any other documentary material in support of
the application by 4 March 2016. Mr Gugiatti was directed to file and serve his submissions
and any evidence in reply by 11 March 2016.
[7] SolarisCare complied with the directions but Mr Gugiatti did not. On 15 March 2016
the Associate to the presiding member of this Full Bench sent Mr Gugiatti an email reminding
him of the direction and requesting that he file his documents as a matter of urgency. On 31
March 2016 the Commission received a telephone call from Mr Gugiatti’s sister indicating
that he was very unwell, had not been checking his email or responding to telephone calls,
and that medical evidence of his condition would be forthcoming. She requested that the
proceedings be stayed.
[8] On 15 April 2016 the Commission received an email from Mr Gugiatti asking that the
proceedings be adjourned for a period of three months. Accompanying the email were two
medical certificates. The first, dated 4 April 2016, was from Dr Kate Bozic, apparently a
general practitioner. It stated:
“Matthew consulted me on the 14th of March 2016 and due to significant health
problems he is currently unfit to participate in proceedings relating to an unfair
dismissal claim and will remain unfit to do so for the next two months while he
receives medical treatment.
Given Matthew’s medical condition he had likely been unwell for some time prior to
his review by myself.”
[9] The second, dated 7 April 2016, was from Dr Mik Parola, also apparently a general
practitioner. It stated:
“This medical certificate is to certify that I reviewed Matthew Gugiatti at our surgery
today.
In my opinion, he is currently unwell and has been receiving treatment since January
this year. He is likely to remain unwell over the coming months and I will review him
again periodically. I am happy to supply an updated medical certificate at your
request.”
[10] There were some issues about whether the material supplied by Mr Gugiatti should be
served on SolarisCare so that it could respond to the adjournment application. Mr Gugiatti’s
position was that the medical certificates which accompanied the email should only be
supplied on the basis that the names of the practitioners were redacted. On 28 April 2016 the
Associate to the presiding member sent an email to Mr Gugiatti indicating that the presiding
member’s view was that there was no reason why the medical certificates should not be
provided to SolarisCare, and that unless Mr Gugiatti provided reasons as to why they were
confidential, they would be forwarded to SolarisCare at 5.00pm on 5 May 2016.
[11] At 4.55pm on 5 May 2016, Mr Gugiatti sent a four-page letter in the nature of a
submission in reply, in which he maintained his position concerning the provision of the
medical certificates. In the course of this correspondence, Mr Gugiatti summarised some of
the history of the appeal proceedings, and requested that the costs application be transferred to
[2016] FWCFB 2478
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a different Commissioner not associated with the hearing at first instance or the appeal
hearing “to avoid any potential bias or the apprehension of the same”. In relation to the
application for the adjournment, the submission stated:
“Application for Adjournment – Costs Application (Appeal)
8. I am an impecunious student. The Respondent’s application seeks a very large
sum of money and is potentially crushing. I submit that an adjournment of this
matter is required to allow a proper rebuttal, when I am fit to do so, at a time
that is consistent with the medical evidence provided.
9. The provisions of the Fair Work Act 2009 (Cth) that the Respondent relies on
for seeking costs are relatively new and were only enacted in 2012. As new
provisions, there has been limited testing of their application. As a self-
represented individual, I seek additional time to address assertions under these
provisions.
10. I am presently impecunious and reliant on CLC and pro-bono legal advice. The
delay associated with these not-for-profit services is significant. I am currently
awaiting advice.”
[12] The correspondence finished by stating that Mr Gugiatti did not consent to it being
provided to SolarisCare, but that he was happy to provide a version “redacting sensitive
personal and health information, at the Commission’s request”.
[13] It is necessary to make some observations about this correspondence, since it
influenced the view ultimately taken as to Mr Gugiatti’s capacity to file a submission in
response to the costs application. It displayed a very high degree of literacy, set out in an
ordered and indeed sophisticated way the arguments which Mr Gugiatti wished to advance,
and revealed a substantial degree of familiarity with legal concepts. In the course of the
correspondence Mr Gugiatti disclosed “I am soon to graduate with inter alia a Bachelor of
Laws”.
[14] On 13 May 2016 the Associate to the presiding member sent Mr Gugiatti an email
stating:
“As previously advised to you, any material you provide to the Commission is as a
matter of normal practice to be made available to the other party to the proceedings
unless a confidentiality order is made under the Fair Work Act 2009. The Commission
proposes to:
1. Provide copies of the medical certificates sent by you to the Commission on 15
April 2016 to the respondent to your appeal. It is not considered that there is
anything in those medical certificates which discloses any personally
confidential matter.
2. Likewise the submission sent to you on 5 May 2016 will be sent to the
respondent.
[2016] FWCFB 2478
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The above materials will be provided to the respondent on the usual basis that they are
to be used for the purposes of these proceedings, and not for any other purpose.
The costs application is currently before the Full Bench consisting of Vice President
Hatcher, Senior Deputy President Hamberger and Commissioner Saunders. If you
wish to make an application that the Bench should recuse itself from hearing the costs
application on the basis of actual or apprehended bias or on some other basis, you will
need to make that application in clear terms. The Full Bench will otherwise continue
to hear the matter.
Please note that a copy of this correspondence has also been sent to your postal
address.”
[15] Mr Gugiatti did not subsequently make an application for the Full Bench to recuse
itself from hearing the costs application.
[16] Also on 13 May 2016, the Commission supplied Mr Gugiatti’s email and medical
certificates sent on 15 April 2016, and his correspondence of 5 May 2016, to SolarisCare, and
requested that it provide a response to Mr Gugiatti’s adjournment application by 5.00pm on
20 May 2016. On 20 May 2016 SolarisCare sent to the Commission by email a short
submission in which it opposed the grant of an adjournment and requested that the
Commission determine the costs application on the material before it.
[17] On 25 May 2016 the presiding member’s Associate sent the following email to the
parties:
“The Full Bench has determined to refuse Mr Gugiatti’s request for the consideration of
the costs application made by SolarisCare Foundation Ltd on 19 February 2016 to be
adjourned. The Full Bench is not satisfied that Mr Gugiatti is medically incapable of
providing a response to the application. The medical certificates provided by Mr
Gugiatti do not establish the existence of any such incapacity, and the literacy, level of
detail and sophistication of Mr Gugiatti’s written submissions in support of his
adjournment application received by the Commission on 5 May 2016 strongly supports
the conclusion that he is readily capable of responding to the costs application.
The Full Bench will proceed to determine the costs application. In this respect, Mr
Gugiatti is directed to provide any submissions he wishes to make in response to the
application in writing by 5.00pm 8 June 2016. The Full Bench will then determine the
costs application and provide its decision to the parties.
Please note that a copy of this email has been sent to Mr Gugiatti’s postal address.”
[18] Mr Gugiatti did not file any submission in response to the costs application by 8 June
2016 as directed. However on 9 June 2016 he sent by email an application requesting a three
month adjournment of the costs application. Accompanying this was a medical certificate
from Dr Kate Bozic dated 23 May 2016 which stated that “due to significant health problems
he is currently unfit to participate in proceedings relating to an unfair dismissal claim” and
would remain unfit for the next two months. There was also a further medical certificate from
Dr Bozic dated 7 June 2016 which described Mr Gugiatti’s medical condition and stated that
he would remain unfit “to participate in unfair dismissal proceedings” for a further three
[2016] FWCFB 2478
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months “until 7th September 2016, at which time I will be able to reassess his fitness”. There
were also other documents of a medical nature accompanying this email.
[19] On 14 June 2016 the following email was sent to the parties:
“The Full Bench will not grant any further adjournments in this matter.
The Full Bench will proceed to determine the Respondent’s costs application on the
basis of the submissions filed to date.”
[20] The above conclusion was reached because Mr Gugiatti was only required to provide a
written submission in response to SolarisCare’s costs application (and was not required to
participate in any formal hearing) and had demonstrated in his prior correspondence,
particularly that of 15 May 2016, that he was well capable of providing such a submission.
Accordingly this decision is made in determination of SolarisCare’s costs application, and
proceeds upon the submissions and supporting material filed by SolarisCare on 4 March 2016.
Section 611(2)
[21] Section 611(1) of the FW Act establishes a general rule that parties in proceedings
before the Commission must bear their own costs. There are a number of provisions in the
FW Act which operate as exceptions to this general rule and allow costs to be awarded in
specific circumstances. The first provision invoked by SolarisCare, s.611(2), is one such
exception. It provides:
(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.
[22] The relevant principles concerning the interpretation and application of s.611(2)(a)
were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health
and Wellbeing3 and may be summarised as follows:
An application is made vexatiously when the predominant motive or purpose of
the applicant is to harass or embarrass the other party or to gain a collateral
advantage.
An application is not made without reasonable cause simply because the
application did not succeed.
3 [2014] FWCFB 810 at [23]-[33]
[2016] FWCFB 2478
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Whether an application is made without reasonable cause may be tested by
asking, on the facts apparent to the applicant at the time the application was made,
whether 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 characterise the application as having
been made without reasonable cause.
In relation to an appeal, the question becomes whether the appeal has no
substantial prospect of success. The prospect of success must be evaluated in the
light of the facts of the case, the judgment appealed from and the points taken in
the notice of appeal. If there is a not insubstantial prospect of the appeal achieving
some success, it cannot fairly be described as having been made without
reasonable cause.
An application will have been made without reasonable cause if it can be
characterised as so obviously untenable that it cannot possibly succeed , or
manifestly groundless, or discloses a case where the tribunal is satisfied cannot
succeed.
[23] In relation to s.611(2)(b), the relevant principles were summarised by the Full Bench
in Baker v Salva Resources Pty Ltd4 as follows (footnotes omitted):
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had
no reasonable prospect of success’ have been well traversed:
‘should have been reasonably apparent’ must be objectively determined. It
imports an objective test, directed to a belief formed on an objective basis, rather
than a subjective test; and
a conclusion that an application ‘had no reasonable prospect of success’ should
only be reached with extreme caution in circumstances where the application is
manifestly untenable or groundless or so lacking in merit or substance as to be not
reasonably arguable.”
[24] SolarisCare submitted in relation to s.611(2)(a) that Mr Gugiatti’s notice of appeal
identified no arguable point of law on the threshold matter by which permission to appeal
may be granted, in that it raised multiple matters extraneous to the decision under appeal,
relied on unsupported allegations about the supposed existence of evidence, and did not
properly identify any matter of public interest or substantial error of facts. It added that the
decision under appeal was patently correct since, on Mr Gugiatti’s own evidence and the facts
known to him at the time he instituted his appeal, his contract of employment was for a
specified period and thus he was precluded from being granted an unfair dismissal remedy.
This lack of merit, it was submitted, was reflected in the appeal decision. It was not submitted
that Mr Gugiatti instituted the appeal proceedings vexatiously.
[25] In relation to s.611(2)(b), SolarisCare likewise submitted that the deficiencies in the
grounds of appeal meant that Mr Gugiatti’s appeal had no reasonable prospects of success as
4 [2011] FWAFB 4014, (2011) IR 174
[2016] FWCFB 2478
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it was, objectively, manifestly untenable or groundless, and so lacking in substance as not to
be reasonably arguable.
[26] It may be accepted that Mr Gugiatti’s appeal notice contained a number of grounds of
appeal that were entirely extraneous to the decision under appeal and, considered in isolation,
had no prospect of attracting the grant of permission to appeal. Many of the grounds
concerned procedural matters, such as the failure of the Commissioner to grant an
adjournment of the hearing, without attempting to demonstrate how they could possibly have
operated to vitiate the conclusions reached by the Commissioner. Other grounds raised issues
which were speculative in nature and did not amount to any proper contention of error, such
as “The Appellant and Respondent have documentary evidence in their possession, custody
and/or power that is discoverable, that was not put before the Commission, because of poor
timetabling, which if it was put before the Commission, would necessarily cause the
Commission to reach a different conclusion”. However there were other grounds of appeal
which, on their face, directly challenged the factual and legal basis of the conclusion reached
by the Commissioner in his decision. In this respect we refer to the following appeal grounds:
“Commissioner Williams Erred, in:
1. finding that there was a contract for a specified period, because inter alia:
a. there was a lack of evidence to reasonably support this conclusion;
b. the evidence before the commission reasonably supported the opposite
conclusion;
c. there is evidence in the possession, custody and/or power of the
Appellant and Respondent that is discoverable that supports the
opposite conclusion; and/or
d. the Commissioner did not consider the issue of automatic renewal,
where renewal is expected and/or a mere formality, based on a pattern
of prior business practice.
2. finding that the Respondent is a small business…
Significant Errors of Fact
1. Commissioner Williams erred in:
a. determining the number of employees of the Respondent and therefore
whether the Respondent is a small business.
b. reckoning the Appellant's period of employment, by:
i. misconstruing the end date of employment;
ii. miscalculating purported unauthorised days of leave; and
[2016] FWCFB 2478
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iii. not considering the significant additional hours worked by the
Appellant, by way of offsetting purported unauthorised days of
leave and/or reckoning the Appellant's total period of employment.”
[27] The difficulty in assessing the merits of these grounds of appeal was, as disclosed in
our earlier decision of 5 February 2016, that Mr Gugiatti never filed an appeal book
containing the evidence that was adduced before the Commissioner, never filed an outline of
submissions in accordance with the Commission’s directions, and did not appear before the
Commission to make oral submissions. That means that the merit of the appeal can only be
assessed by reference to the appeal grounds and the decision under appeal. As earlier set out,
the appeal decision said in relation to those appeal grounds which were actually directed to
the Commissioner’s decision that they were “unsupported allegations”. We characterised
them as “unsupported” because Mr Gugiatti never advanced anything to support them.
However that does not mean that they were intrinsically without merit. It may have been that,
supported by proper submissions and with the benefit of an appeal book, those grounds may
have been considered to be arguable. Because they dealt with jurisdictional issues, that may in
turn have meant that there were real prospects of permission to appeal being granted.
[28] For these reasons, we cannot positively conclude, for the purpose of s.611(2)(a), that
Mr Gugiatti instituted his appeal without reasonable cause. For the same reasons, we cannot
find under s.611(2)(b) that it should have been reasonably apparent to Mr Gugiatti that his
appeal had no reasonable prospect of success. There is therefore no power to order costs
against Mr Gugiatti under s.611(2).
Section 400A
[29] Section 400A, which is another exception to the general rule in s.611(1), provides:
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.
[30] A preliminary question arises as to whether an appeal proceeding under s.604 of the
FW Act involving an appeal against an unfair dismissal decision may be “a matter arising
under this Part” (that is, Pt.3-2, Unfair Dismissal, of the FW Act) in relation to which s.400A
may operate. We note that we can identify at least three Full Bench decisions in which a
party’s costs of an appeal from an unfair dismissal were ordered to be paid under s.400A.5
5 Roy Morgan Research Ltd [2014] FWCFB 1175; Newbond v GM Holden Ltd [2016] FWCFB 321; Armstrong v Taxation
Management Services Pty Ltd ATF TMS [2016] FWCFB 1179
[2016] FWCFB 2478
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However in each case the application of s.400A appears to have been assumed rather than
analysed.
[31] The expression “a matter arising under this Part” in s.400A(1) uses language which
has been assigned a broad meaning where used in other legislative contexts. In the context of
s.76 of the Australian Constitution, the expression “any matter... arising under any laws made
by the Parliament” has been interpreted as referring to the whole of a justiciable dispute or
controversy rather than a particular legal proceeding in which the dispute or controversy is
agitated.6 In relation to the power to award costs under s.347(1) the Industrial Relations Act
1988, which prohibited an order for costs against a party to a proceeding “in a matter arising
under this Act” unless the party instituted the proceeding vexatiously or without reasonable
cause, it has been held that the provision applied to any proceeding where the right or duty
sought to be enforced was one which owed its existence to the Act.7
[32] That causes us to conclude that s.400A does apply to an appeal against a decision in
relation to an application made under Pt.3-2. Such an appeal forms part of a matter arising
under Pt.3-2 because it concerns a dispute about a dismissal from employment which is
alleged, by way of an application made under s.394, to have been unfair. An appeal against an
unfair dismissal decision can be characterised as a proceeding seeking to enforce the
Commission’s duty to decide an unfair dismissal remedy application in accordance with the
provisions of Pt.3-2, and thus owes its existence to Pt.3-2.
[33] The legislative history supports this interpretation. Section 400A was added to the FW
Act by item 4 of Schedule 6 of the Fair Work Amendment Act 2012. The explanatory
memorandum for the Fair Work Amendment Bill 2012 which gave rise to that Act stated,
among other things, that this amendment was intended to give effect to recommendation 45 of
the June 2012 report (Towards more productive and equitable workplaces: An evaluation of
the Fair Work legislation) of the Fair Work Act Review Panel. Recommendation 45 of that
report was as follows:
“The Panel recommends that the FW Act be amended to allow FWA to make costs
orders against a party that has unreasonably failed to discontinue a proceeding, or that
has unreasonably failed to agree to terms of settlement that could have led to
discontinuing the application, or that has through an unreasonable act or omission
caused the other party to incur costs.”
[34] In relation to this recommendation, the report relevantly stated at [10.9.4] (emphasis
added):
“We also recommend extending the circumstances in which costs can be ordered against
parties and their representatives. We see merit in reintroducing the provisions referred
to above, which enable costs to be awarded against either side when there is an
unreasonable failure to discontinue or settle proceedings, or where unreasonable acts
of omissions result in costs being incurred. Further, we note that the power in s.401 to
award costs against a lawyer or paid agent is only enlivened once FWA has granted
permission for the lawyer or agent to represent a party. However, many cases do not
6 Crouch v Commissioner for Railways (Qld.) (1985) 159 CLR 22 at 37
7 Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 at 656
[2016] FWCFB 2478
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reach the formal stage where permission is sought and given. Circumstances may arise
before that point when it would be appropriate to exercise the power conferred by
s.401. The power to award costs should not depend on the formal grant of
representational rights.”
[35] The reference to “in reintroducing the provisions referred to above” is to [3.3.7] of the
report, which described the unfair dismissal provisions applying to the Australian Industrial
Relations Commission under the Workplace Relations Act 1996 (WR Act). This part of the
report relevantly stated:
“The AIRC was also empowered to order costs in respect of vexatious or unreasonable
applications or an unreasonable failure to agree to terms of settlement. The court [sic]
was permitted to order costs when a party instituted proceedings vexatiously or
unreasonably, or conducted themselves unreasonably in the course of the proceeding.”
[36] Prior to the Workplace Relations Amendment (Work Choices) Act 2005, the provisions
empowering the award of costs referred to in the above passage of the report were contained
in s.170CJ of the WR Act. The legislative history of that provision is instructive. As enacted
in 1996, s.170CJ(2) empowered the Commission to order costs against a party where the
Commission was satisfied that, after the Commission had begun arbitrating an unfair
dismissal application, the party had “acted unreasonably in failing to discontinue the
proceedings or to agree to terms of settlement”, and s.170CJ(3) also empowered the
Commission to order costs against a party which had elected to take an unfair dismissal
application to arbitration and then had discontinued if it was satisfied that the party had “acted
unreasonably in failing to discontinue the application at an earlier time”. In K.M. Lloyd v
International Health & Beauty Aids Pty Ltd t/as Elly Lukas Beauty8 a Full Bench of the
Australian Industrial Relations Commission determined that s.170CJ(2) did not operate with
respect to appeal proceedings concerning an unfair dismissal decision having regard to a
number of contextual matters including the terms of s.170CJ(3).
[37] Section 170CJ was substantially amended by items 31-33 of Schedule 1 of the
Workplace Relations Amendment (Termination of Employment) Act 2001. As a result of the
amendments, s.170CJ(3) provided:
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made
under section 170CE caused costs to be incurred by the other party to the
proceeding; and
(b) that the first party caused the costs to be incurred because of the first
party's unreasonable act or omission in connection with the conduct of the
proceeding;
the Commission may, on an application by the other party under this section, make an
order for costs against the first party.
8 [1998] AIRC 1206, Print Q5446 (28 August 1998)
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[38] A new s.170CJ(8) was also added by the amendments which provided that
“proceedings relating to an application under section 170CE” included, among other things,
“...(e) an appeal to the Full Bench from an order of the Commission under section 170CH or
a costs order under section 170CJ...”. After the amendments effected by the Workplace
Relations Amendment (Work Choices) Act 2005, s.170CJ(3) became s.658(3) of the WR Act,
and s.170CJ(8) was s.658(10).
[39] We infer from this history that the legislative intention in the enactment of s.400A of
the FW Act was to re-introduce the costs provision in s.170CJ(3) of the WR Act as it was
after the Workplace Relations Amendment (Termination of Employment) Act 2001 - a
provision which was applicable to appeals by virtue of s.170CJ(8). Thus an interpretation of
s.400A which renders it applicable to appeals from unfair dismissal proceedings is consistent
with that legislative intention and history.
[40] It might be said against this interpretation that it would be anomalous to have different
costs provisions applying to appeals against unfair dismissal provisions as compared to most
other types of appeals. However other provisions of the FW Act apply special requirements to
unfair dismissal decision appeals which are not applicable to most other types of appeals.
Specifically, s.400(1) requires that the Commission must not grant permission to appeal from
a decision made under Pt.3-2 unless it considers that it is in the public interest to do so, and
s.400(2) requires that an appeal against a decision under Pt.3-2, to the extent that it concerns a
question of fact, must be made on the ground that the decision involved a significant error of
fact. It is apparent therefore that the legislature intended that special provisions would apply
to appeals from unfair dismissal decisions.
[41] We therefore conclude that s.400A is capable of application to Mr Gugiatti’s appeal.
[42] Section 400A(2) requires that, to succeed, a costs application must have been made in
accordance with s.402, which relevantly provides that the application must be made within 14
days after the Commissioner determines the matter. SolarisCare’s application was made
within that time period.
[43] Section 400A(1) establishes two pre-conditions for the making of an order for costs
under the subsection (in addition to the requirement in s.400A(2)). The first is that the
Commission must be satisfied that a party engaged in an unreasonable act or omission in
relation to the conduct or continuation of a matter. The second is that such act or omission
caused the other party to the matter to incur costs. Once these preconditions are satisfied, a
discretionary power to order the payment of such costs is enlivened.
[44] SolarisCare submitted that Mr Gugiatti engaged in the following unreasonable acts
and omissions:
his notice of appeal contained numerous extraneous matters and unsupported
allegations;
he pursued the appeal when on his own evidence and the facts known to him at
the time of commencing the appeal his contract of employment was for a
specified period of time and he was thereby precluded from the jurisdiction of the
Commission;
[2016] FWCFB 2478
13
he did not comply with any direction of the Commission or requirement of the
appeal process;
he did not appear at the listed hearing dates, and the Commission did not accept
that there was medical evidence that he was unfit to do so;
he provided very late or no notification of his non-attendances;
he did not reply to telephone calls from the Commission inquiring as to his non-
attendance on 20 January 2016;
he failed to accept an offer of settlement on 16 June 2015 to the effect that he
discontinue his appeal and a related proceeding and enter into a deed of release in
consideration for the provision of a statement of service by SolarisCare;
despite SolarisCare advising Mr Gugiatti on 21 December 2015 of its opposition
to any further adjournment and the impact upon it of the delay, he at no point
advised SolarisCare that he would not attend the hearing on 19 January 2016 or
warn it not to prepare;
none of the extraneous appeal grounds or unsupported allegations in the notice of
appeal were withdrawn prior to the hearing;
he failed to discontinue the proceedings notwithstanding the unreasonable acts
earlier described and SolarisCare’s correspondence to Mr Gugiatti of 21
December 2015 which identified the deficiencies in the appeal, advised him that
an application for costs would be made if permission to appeal was not granted,
and invited him to discontinue; and
his failure after 16 June 2015 to make any genuine or reasonable offer to settle the
appeal proceedings and thereby avoid the need for a hearing.
[45] SolarisCare provided a copy of an itemised bill of legal costs incurred by it in
connection with the appeal. It contended that Mr Gugiatti caused those costs to be incurred by
the unreasonable acts and omissions set out above.
[46] We accept that Mr Gugiatti engaged in unreasonable acts or omissions in relation to
his non-attendance at the hearings on 19 and 20 January 2016 and his failure to provide timely
advice to the Commission and SolarisCare concerning this. To explain why we have reached
this conclusion, it is necessary to set out some of the chronology of events.
[47] As stated in the appeal decision, Mr Gugiatti’s matter was originally listed to be heard
in relation to the issue of permission to appeal in June 2015, but it was adjourned because the
Commission accepted medical evidence that Mr Gugiatti was at that time not medically fit to
proceed to appear in person at the hearing (he not being legally represented). On 18
September 2015 Mr Gugiatti provided the Commission with a medical certificate which
indicated that he would remain unfit to proceed with his appeal for a period of approximately
three months. On 23 September he sent a letter to the Commission requesting that his matter
“remain adjourned until the New Year”, at which time he would “provide the Commission
with an update”. In light of this advice, the parties were informed on 1 October 2015 that the
[2016] FWCFB 2478
14
Commission was minded to adjourn the proceedings until January 2016, and if SolarisCare
opposed this course it was required to file a submission concerning the procedural course the
appeal should take by 9 October 2015. No such submission was filed, and on 19 October 2015
the Commission advised the parties by email that, on the basis of medical evidence, Mr
Gugiatti would be unable to proceed with his appeal for a period of three months and the
matter would be adjourned until January 2016 when it would be placed in the permission to
appeal roster for that month. The email further advised that “A Notice of Listing and
Directions will be sent to the parties when the matter has been allocated to the roster”.
[48] On 10 December 2015, the parties were advised that the matter would be placed on the
permission to appeal roster for hearing on 19 January 2016. On 18 December 2015 the formal
listing of the matter was sent to the parties which identified that the matter was listed for
hearing (by video link) before the Full Bench on 19 January 2016 (at not before 2.00pm
AEDT, where the Full Bench would be located, and not before 11.00am AWST where it was
anticipated that one or both parties would appear). Accompanying the listing were directions
which, among other things, confirmed that the matter was listed for hearing in relation to
permission to appeal only and required Mr Gugiatti to file and serve an outline of submissions
not exceeding three pages in length addressing the requirement for permission to appeal by
5.00pm on 12 January 2016.
[49] Mr Gugiatti did not file and serve an outline of submissions in accordance with the
Commission’s directions. Nor had he at any stage filed and served an appeal book in
accordance with rule 56(3) of the Fair Work Commission Rules. The Commission attempted,
unsuccessfully, to make telephone contact with Mr Gugiatti about his procedural failures on
13 January 2016. On 14 January 2016, after close of business, Mr Gugiatti left a voicemail
message with the chambers of the presiding member of this Full Bench requesting an
adjournment of the hearing on 19 January 2016. This was the first contact he had made with
the Commission since his letter of 23 September 2015. In response, the presiding member’s
associate sent an email to Mr Gugiatti at 8.50am on 15 January 2016 advising him that any
adjournment request should be sent to the Commission by 5.00pm that day. The email also
drew Mr Gugiatti’s attention to s.607 of the FW Act, which permits appeals to be determined
“on the papers” without the need for a formal hearing subject to, among other things, all
parties consenting to that course.
[50] At precisely 5.00pm AEDT on 15 January 2016 (a Friday), Mr Gugiatti sent to the
Commission a written application for the adjournment of the hearing on medical grounds. He
enclosed a medical certificate from a general practitioner which indicated that he had
reviewed Mr Gugiatti on 14 January 2016 and stated:
“He describes being involved in an unfair dismissal claim recently. There has been
mental health stressors recently which have impacted Matthew adversely, as such if all
consideration could be given to his case including potentially delaying the hearing on
Tue 19th Jan 2016.”
[51] Mr Gugiatti’s letter also contained the following statements:
“I am in the process of obtaining additional supporting medical evidence, which I will
likely receive over the weekend. I will be able to provide the Commission with this
evidence, a supporting affidavit explaining my circumstances and an application to
progress the matter in the absence of Tuesday’s hearing, by Monday morning.
[2016] FWCFB 2478
15
In response to the Commission’s query about hearing this matter in the absence of oral
submissions, at this stage, I do not consent (for the purposes of section 607(1) of the
Fair Work Act 2009) to the permission to appeal hearing being heard by way of
written submissions only, without a formal hearing:
1. Because of impecuniosity, I am unable to instruct a lawyer or advocate;
and
2. As a self-represented Appellant, my present ill health means that I am
currently not well enough to undertake the necessary work to provide
adequate substantive written submissions in relation to this matter.”
[52] It may be observed that Mr Gugiatti’s email, like his other written communications to
the Commission, demonstrated him to be highly literate with a very good understanding of the
procedural issues at play.
[53] Mr Gugiatti did not provide his promised affidavit on Monday 18 January 2016. The
Commission advised Mr Gugiatti by voicemail message and email that day that the hearing
would proceed as listed the following day at 2.00pm AEDT, 11.00am AWST.
[54] At 1.55pm AEDT on 19 January 2016 Mr Gugiatti sent an email to the presiding
member’s associate stating:
“Please find attached.
Sorry for the late notice. The supporting evidence is in the form of a statutory
declaration, rather than an affidavit, because I was unable to leave home today because
of ill health, and I had a suitably qualified friend visit me to witness my statutory
declaration.”
[55] In his attached statutory declaration, Mr Gugiatti described his mental health issues in
the following terms:
“4. My mental health is presently very poor.
5. As previously provided to the FWC, I was consulting a psychologist, Mr Derek
Amenkowitz.
a. On or about 8 October 2015, it became evident that a potential conflict
of interest (unrelated to these FWC proceedings) existed or would exist,
which may prohibit my continued treatment with Mr Amenkowitz.
i. While we attempted to ‘navigate’ the conflict so that my treatment
would not be interrupted, towards the end of November 2015, it
became evident that I would have to cease seeing Mr Amenkowitz.
ii. These circumstances have limited my progress/recovery.
[2016] FWCFB 2478
16
b. For reasons associated with the abovementioned conflict (unrelated to
these FWC proceedings), I had to also change General Practitioner
(“GP”). This is the reason why my medical certificate dated 14 January
2016 is from a different medical practitioner, Dr Mik Parola.
i. While I have previously consulted Dr Parola, he did not have the
complete and extensive history regarding my mental health issues.
Accordingly, his medical certificate is limited. However, he did
assess me as unwell on the date I consulted him.
ii. During my consultation with Dr Parola I undertook a further K10
test (Kessler Psychological Distress Scale), in which I scored a 44,
indicating a very severe level of mental distress. A copy of this test
is attached.
iii. Dr Parola has referred me to a new clinical psychologist, Dr Chris
Lee (under a Mental Health Care Plan) and a psychiatrist, Dr Jane
Fitch. Copies of referrals attached.
iv. I have not previously consulted a psychiatrist. Dr Parola has
recommended this course of action, as I have trialled various
effects, which had been managed at a GP level and likely limited
my progress/recovery.
c. I confirm that I have requested an update letter from my alcohol counsellor,
Ms Jill James. I am yet to receive a response to my request. Ms James is a
qualified practitioner, but volunteers at Palmerston Perth and may not be
able to provide her letter until later this week.
i. Notwithstanding the lack of Ms James’ letter, I have been referred
to the Palmerston SMART Recovery group, as a way of
progressing my recovery.”
[56] There were a number of documents from medical practitioners attached to the
statutory declaration. None of these documents was in the nature of a medical certificate
expressing the opinion that Mr Gugiatti was medically incapable of attending and
participating in the hearing listed for 19 January 2016.
[57] Mr Gugiatti also described how he had become the primary carer of another person
who had been made an involuntary hospital patient on or about 23 November 2015, for whom
he was the “Nominated Person” under the Mental Health Act 2014 (WA). He said “Assisting
my friend was time-consuming, exceptionally difficult and had an adverse impact on my own
mental health and recovery/progress”. He also described his difficulties with osteoarthritis,
and said he was waiting for arthroscopic surgery and that his first physiotherapy appointment
would be later that week. He said that his “symptoms of pain and restriction of movement, are
prohibitive” and had “also exacerbated my mental health symptoms”.
[58] SolarisCare attended the hearing listed at 2.00pm AEDT by videolink from Perth,
although the commencement of the hearing was delayed due to the late receipt of Mr
Gugiatti’s statutory declaration and the need to supply a copy of it to SolarisCare.
[2016] FWCFB 2478
17
SoliarisCare opposed the adjournment sought by Mr Gugiatti. We were not satisfied that Mr
Gugiatti was medically incapable of advancing his case for permission to appeal, but his non-
attendance meant that our view in that respect could not be conveyed to him at the hearing.
The matter was accordingly stood over for further hearing on 12.00 noon AEDT the following
day (20 January 2016). At 4.20pm AEDT the Commission sent Mr Gugiatti an email advising
him of the Full Bench’s determination in this respect, and warning him that if he did not
attend, the matter might be heard and determined in his absence.
[59] The hearing on permission to appeal proceeded at 12.00 noon on 20 January 2016. Mr
Gugiatti did not attend. Commission staff had earlier attempted to contact Mr Gugiatti by
telephone during the course of the morning, but their calls were not answered or returned. We
heard submissions from SolarisCare’s legal representative, and then reserved our decision. As
earlier stated, our decision refusing permission to appeal was subsequently issued on 5
February 2016.
[60] We consider that the events described above disclose that Mr Gugiatti acted
unreasonably in the following respects:
(1) Having been advised on 19 October 2015 that his appeal would be listed in
January 2016, and having received advice of the hearing date on 10 December
2015 and the notice of listing on 18 December 2015, Mr Gugiatti took no steps
to indicate that there would be any issue with his attendance until 14 January
2016 after the Commission had made inquiries about his failure to comply with
the Commission’s directions.
(2) Mr Gugiatti never filed an appeal book in accordance with rule 56(3), and
never filed an outline of submissions in accordance with the Commission’s
directions of 18 December 2015, and did not advance an acceptable reason for
doing so.
(3) Mr Gugiatti did not make an application to adjourn the hearing listed on 19
January 2016 until 5.00pm AEDT on Friday 15 January 2016. The medical
certificate advanced in support of that application did not indicate any
incapacity to attend the hearing.
(4) The further material advanced by Mr Gugiatti to support his adjournment
application was not sent to the Commission until five minutes before the
scheduled start time of the hearing on 19 January 2016.
(5) The further material did not demonstrate that Mr Gugiatti was incapable of
attending and participating in the hearing, but in any event he did not attend.
(6) Mr Gugiatti’s conduct required the hearing to be stood over until the following
day, thus requiring SolarisCare’s legal representatives to attend the
Commission a second time.
(7) Mr Gugiatti failed to provide any advice that he was not going to attend the
hearing on 20 January 2016.
[2016] FWCFB 2478
18
[61] We are not satisfied that Mr Gugiatti otherwise engaged in unreasonable acts or
omissions as contended by SolarisCare. In particular:
(1) The merits of the grounds of appeal in the appeal notice as filed do not
properly arise for consideration under s.400A. The section is concerned with
unreasonable acts or omissions in connection with the “conduct or
continuation” of a matter already instituted, not with whether it was reasonable
to have instituted a matter in the first place.
(2) We cannot assess Mr Gugiatti’s refusal to accept SolarisCare’s offer of
settlement as unreasonable. Its letter of offer refers to an offer which Mr
Gugiatti had made which it rejected. Without knowing what the terms of Mr
Gugiatti’s offer was, it cannot be determined that his refusal of SolarisCare’s
offer was unreasonable.
[62] It is necessary to next consider whether the unreasonable acts or omissions on the part
of Mr Gugiatti which we have identified caused costs to be incurred by SolarisCare.
SolarisCare has claimed all its costs for preparation for and attendance at the hearing
concerning permission to appeal. We cannot characterise Mr Gugiatti’s conduct as having
caused all those costs to be incurred, since SolarisCare would have had to prepare for the
hearing and attend on one occasion even if Mr Gugiatti had not engaged in those acts or
omissions. However, we accept that Mr Gugiatti’s conduct was the direct cause of SolarisCare
having to attend the Commission on a second occasion. It also provided the substantial basis
for the making of the costs application, and thereby caused the costs associated with making
that application to be incurred. Therefore the discretion to order those costs under s.400A is
enlivened.
[63] We consider it appropriate that SolarisCare should be ordered its costs for attendance
at the second hearing on 20 January 2016 and its costs associated with making its costs
application. As earlier stated, SolarisCare provided a copy of its itemised bill of costs for the
appeal. Having regard to that bill, we consider it appropriate to make an order for costs in
SolarisCare’s favour in the amount of $2,500.00. A separate order to that effect will be
issued.9
VICE PRESIDENT
Appearances:
E.Moran for SolarisCare Foundation Ltd
9 PR584062
OF THE FAIR WORK MISSION THE
[2016] FWCFB 2478
19
Hearing details:
2016.
Sydney:
20 January.
Final written submissions:
19 February 2016 - SolarisCare Foundation Ltd.
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Price code C, PR579238
