[2014] FWC 5588
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Paul Hill
v
L E Stewart Investments Pty Ltd T/A Southern Highlands Taxis and Coaches; Laurie Stewart; Robert Carnachan; Nick Matinca
(AB2014/1121)

VICE PRESIDENT HATCHER

SYDNEY, 21 AUGUST 2014

Application for costs.

[1] In a decision issued on 25 July 2014 (Decision) 1, I dismissed an application made by Mr Paul Hill under s.789FC(1) of the Fair Work Act 2009 (the Act) for an order to stop bullying on the basis of two findings: firstly, that Mr Hill had failed to prosecute his application since 19 June 2014, and secondly, that Mr Hill’s application had no reasonable prospect of success.

[2] At the hearing of Mr Hill’s anti-bullying application, which he did not attend, Mr Laurie Stewart on his own behalf and as director of L E Stewart Investments Pty Ltd, Mr Robert Carnachan and Mr Nick Matinca (the respondents) foreshadowed an intention to apply for costs. In the Decision, having dismissed Mr Hill’s application, I directed the parties as follows:

[3] On 29 July 2014 the respondents filed a two page submission in accordance with the above direction. The submission itemised the costs sought by the respondents as follows:

[4] The respondents claimed the costs detailed above on the grounds of inconvenience and disruption, evidenced by the time they spent preparing for and participating in the listed telephone conferences and attending the hearing in Wollongong. The respondents supported the claim for costs on the ground that Mr Hill’s anti-bullying application was “vindictive and frivolous”.

[5] Mr Hill did not file any submission on the question of costs in accordance with the above direction or otherwise.

[6] Section 611(1) of the Act establishes a general rule that a person must bear the person’s costs in relation to a matter before the Commission. The only exception to that rule applicable to anti-bullying matters is provided for in s.611(2) of the Act as follows:

[7] The limited power to award costs conferred by s.611(2) is discretionary in nature, subject to the Commission first being satisfied as to one or both of the matters specified in paragraphs (a) and/or (b). Given my finding in the Decision that Mr Hill’s application did not have any reasonable prospect of success, s.611(2)(b) is potentially enlivened in this case.

[8] The principles applicable to the construction and application of s.611(2)(b) were summarised by the Full Bench in Baker v Salva Resources Pty Ltd2 as follows:

[9] I am satisfied that it should have been reasonably apparent to Mr Hill that his application had no reasonable prospect of success. The fundamental purpose of anti-bullying orders is to stop bullying occurring. The legislative scheme is directed to preventing potential future conduct, not punishing or compensating for past conduct. That is why s.789FF(1)(b)(ii) of the Act establishes as a prerequisite for the making of anti-bullying orders that the Commission be satisfied that there is a risk that the applicant worker will continue to be bullied at work. Objectively speaking, it should have been apparent that after Mr Hill’s working relationship with the respondents came to an end on 11 March 2014, six days before Mr Hill filed his application, with there being no reasonable prospect of the working relationship re-commencing at some future time, there was no further risk of Mr Hill continuing to be bullied by the respondents at work (irrespective of whether there had been any past bullying or not).

[10] I therefore have a discretion as to whether to make an order for costs. I consider, on the basis of the facts set out in paragraphs [2]-[21] of the Decision, that Mr Hill’s unreasonable behaviour in not attending the hearing of his application, not advising that he would not attend and not responding to the Commission’s prior inquiries as to whether he would attend, and his failure to provide any reasonable explanation for this conduct, justifies the exercise of the discretion in favour of awarding the respondents costs in respect of the hearing in Wollongong on 10 July 2014.

[11] The question remains as to what costs can be ordered. The word “costs” as used in s.611 and elsewhere in the Act is not defined. “Costs” is usually interpreted to mean fees for professional legal services and other permissible out-of-pocket expenses actually incurred in the conduct of litigation. It does not include the time spent by a litigant in person in preparing for or conducting his or her case. 3 The respondents were self-represented; they cannot therefore be compensated for the time spent preparing for or attending the hearing as parties.

[12] However each of the personal respondents was a witness in his own case as well as that of the first respondent (L E Stewart Investments Pty Ltd), the entity which had actually engaged Mr Hill. Each of them made and filed what may be characterised as a witness statement in accordance with the Commission’s directions, and presumably would have given evidence if the hearing had proceeded. A litigant who qualifies as a witness is entitled to the ordinary witness’s fees. 4 Therefore I consider it appropriate to award costs in the nature of witness fees for the attendance by Mr Stewart, Mr Carnachan and Mr Matinca at the court in Wollongong on 10 July 2014.

[13] I will take into account the schedule of costs in Schedule 3.1 of the Fair Work Regulations 2009 for the purpose of quantifying costs (even though Schedule 3.1 does not appear to be prescribed for the purposes of s.611(2)). Part 14 item 1402 of Schedule 3.1 allows for the expense of witnesses who are remunerated in their occupation by wages or salary or fees to be awarded “The amount lost by attendance at the FWC”. There is no evidence before me that Mr Stewart, Mr Carnachan or Mr Matinca actually lost any pay because of their attendance. However, I consider that to the extent that L E Stewart Investments Pty Ltd paid wages to any of the three while they attended without getting any work performed in return, that constitutes an out-of-pocket witness expense to it. The respondents’ submissions stated that Mr Matinca is a part-time employee only who does not usually work during the day, so there could not have been any expense with respect to him. However, taking into account attendance time and travel time, I consider that four hours pay, at the rates identified in the respondents’ submissions, should be awarded to L E Stewart Investments Pty Ltd for Mr Stewart’s and Mr Carnachan’s wages.

[14] Item 1403 of Part 14 additionally allows the Commission to award an amount which it “considers reasonable for the actual costs of travel, plus a reasonable amount for meals and accommodation” in respect of travel expenses for witnesses who live more than 50 kilometres from the Commission. As I understand it, Mr Stewart, Mr Carnachan and Mr Matinca reside in the Southern Highlands more than 50 kilometres in travelling distance from Wollongong. However because no separate expense in this respect is claimed in the respondents’ submissions, it is unclear what expense was actually incurred (or whether it is included in the wage amounts claimed by the respondents). I will therefore not award any amount under this head.

[15] I will therefore order that Mr Paul Hill shall, within 14 days of the date of this decision, pay the amount of $420.00 for costs to L E Stewart Investments Pty Ltd. A separate order shall issue to this effect.

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VICE PRESIDENT

Final written submissions:

For the respondents - 29 July 2014.

 1   [2014] FWC 4666

2 [2011] FWAFB 4014 at [10], followed in Qantas Airways Limited v Carter [2013] FWCFB 1811 at [19] and Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323 at [15]

 3   Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409 per Mason CJ and Brennan, Deane, Dawson and McHugh JJ

 4   Ibid at 417

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