[2016] FWCFB 2367
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

David Churches; Nic Smargiassi; Marc Bernardi
v
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 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 noted 1 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 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:

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:

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 King 4 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

[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:

(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:

[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.

[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:

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

[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 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:

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):

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 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 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.

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

“[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.

[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.” 22

[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 - - -

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 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 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 Wentworth 32 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 Act 35 in summarising the 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.

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:

“[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

[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 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 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 proceedings 45 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

[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 SB 46 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.

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

ir Work Commission Seal with Members Signature

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.

 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]

 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)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579070>