[2015] FWC 8618
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.611—Costs application

Wendy Cowan
v
Durri Aboriginal Corporation Medical Service
(AB2015/411)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 15 DECEMBER 2015

Application for an FWC order to stop bullying – costs application – costs not ordered – costs application dismissed.

[1] On 24 June 2015, Ms Wendy Cowan applied for an order to stop bullying against the chairperson of an organisation at which she volunteers, Durri Aboriginal Corporation Medical Service (Durri) and its legal representative.

[2] On 3 September 2015, I issued a decision 1 dismissing Ms Cowan’s application for want of prosecution.

[3] On 11 September 2015, Durri applied for costs against Ms Cowan, submitting both that she had made the originating application vexatiously or without reasonable cause, and that it had no reasonable prospects of success. I subsequently issued directions for both Durri and Ms Cowan to make written submissions.

[4] The fact that the application was never prosecuted means that I have very limited information on its merits. I have determined Durri’s costs application on the material before me, comprising the parties’ written submissions as to costs, Ms Cowan’s originating application (Form F72) and Durri’s response thereto (Form F73).

Principles and consideration

[5] Durri’s costs application is made under s.611 of the Fair Work Act 2009 (Cth) (the Act), which provides:

[6] The starting point is that each party bears its own costs in proceedings before the Fair Work Commission (the Commission). Section 611 of the Act then goes on to provide that the Commission may order exceptions to that general rule if either s.611(2)(a) or (b) is satisfied. However, even if one of those subsections is satisfied, the Commission is not obliged to order costs. It is a discretionary decision. The power to award costs pursuant to s.611(2) is to be exercised with caution and only in a clear case. 2

Vexatiously or without reasonable cause: s.611(2)(a)

[7] In Qantas Airways Limited v Carter3 a Full Bench of the Commission endorsed the observations of North J in Nilsen v Loyal Orange Trust4 on when an application is made vexatiously. His Honour stated:

[8] I do not accept Durri’s submission that Ms Cowan’s originating application can be so characterised. While Durri variously contended that Ms Cowan made this application to distract from its investigation into a resolution passed by its board of directors (Ms Cowan included) and to limit the services rendered by its legal representative, there is no evidence before me to support those assertions. Nor is there evidence to suggest Ms Cowan did not genuinely feel she was being bullied.

[9] In the recent decision in Keep v Performance Automobiles Pty Ltd 5 (Keep), a Full Bench of the Commission summarised the principles relevant to when an application is made without reasonable cause:

[10] In this case, the information available to me about the merits of the application is so limited that I cannot find that it was made without reasonable cause. It is insufficient even potentially to disclose a case which I am satisfied cannot succeed, let alone a clear case in which costs should be awarded. I have not heard the applicant elaborate on her case, not even in a private conference. Nor have I had the benefit of hearing the parties test each other’s claims.

Reasonably apparent that application had no reasonable prospect of success: s.611(2)(b)

[11] In Keep, the Full Bench also summarised the principles relevant to the second limb of s.611(2) of the Act:

[12] Similarly, the Full Bench in Baker v Salva Resources Pty Ltd 6 stated:

[13] Durri submits that since Ms Cowan’s originating application discloses only one instance of alleged bullying behaviour against its legal representative, her claim as against him must fail on jurisdictional grounds. While it is true that the legislative definition of ‘bullied at work’ requires the alleged bully to have repeatedly behaved unreasonably towards the applicant, 7 I do not consider that it should have been reasonably apparent to Ms Cowan that her application had no reasonable prospect of success on this basis. The anti-bullying jurisdiction is still relatively new and the Act’s definition of ‘bullied at work’ is not a plain-English one.

[14] Further, even on the limited information Ms Cowan has furnished, she identifies the elements of an arguable case against Durri’s chairperson.

[15] These considerations, together with the need to exercise extreme caution in making a positive finding under this subsection, mean that I am not satisfied that it should have been reasonably apparent to Ms Cowan that her application had no reasonable prospect of success.

Conclusion

[16] I am not satisfied that Ms Cowan’s application was made vexatiously or without reasonable cause. Nor am I satisfied that it should have been reasonably apparent to her that her application had no reasonable prospect of success. Accordingly, I have no jurisdiction to order costs.

[17] I note that even if either limb of s.611(2) were satisfied, I would as a matter of discretion decline to order costs in this case. This is first because Ms Cowan was self-represented (and appears to have no access to expert advice) and therefore could not have been expected to appreciate the technical ground on which her claim against Durri’s legal representative would not have succeeded (assuming the information provided in her application in relation to him is exhaustive). Additionally, I would take into account the difficulties arising from the fact that Ms Cowan suffered a brain aneurysm which impairs her memory, a fact which appears to be uncontested.

[18] Durri’s costs application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   [2015] FWC 6094.

 2   Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

 3   [2013] FWCFB 1811, [17].

 4   (1997) 76 IR 180, 181.

 5   [2015] FWCFB 1956, [17].

 6   [2011] FWAFB 4014. [10].

 7   Fair Work Act 2009 (Cth) s.789FD(1)(a).

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