DECISION

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

Mr Joseph Salama
v
Transport for NSW t/a Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting
(AB2017/280)

Application for an order to stop bullying – applicant dismissed from employment – bullying application dismissed under s 587 of the Act – application for costs – no reasonable prospects of success – principles in costs applications in Stop Bullying applications – Commission’s general principles under s 611 of the Act applied – general protections proceedings lodged in Federal Court – application to stay original proceedings dismissed – costs sought for period from 19 December 2017 – relevant tests under s 611(2)(b) satisfied – should have been reasonably apparent that application had no reasonable prospects of success – application granted on a party to party basis – indemnity costs refused – orders to be made pursuant to Commission’s Schedule of Costs in Act’s Regulations.

BACKGROUND

[1] On 21 May 2017, Mr Joseph Salama filed an application, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’) in which he requested the Fair Work Commission (the ‘Commission’) make an order to stop bullying (the ‘s 789FC application’ the ‘Stop Bullying application’). The Stop Bullying application named four management persons, who Mr Salama alleged had harassed and bullied him while he was carrying out his duties as a Union delegate and Health and Safety Representative at Transport for NSW t/a Sydney Trains (‘Sydney Trains’). Sydney Trains was named as the fifth respondent. Mr Salama’s substantive position was Transport Officer and he had been employed by Sydney Trains (or its predecessor entities) since 28 August 2013. Mr Salama alleged the harassment and bullying included threats of disciplinary action in relation to alleged false allegations made by him.

[2] The matter was allocated to me on 5 June 2018, and in accordance with my usual practice, I listed the matter for a conference on 15 June 2018 in order to explore resolution of the application, without the need for further proceedings. Unfortunately, the matter did not resolve at the conference, and it was subsequently listed for a three day hearing in September 2017. At that time, I also issued directions for the filing and service of evidence and outlines of submissions.

[3] On 5 July 2017, the respondents filed an application seeking that the Commission dismiss the Stop Bullying application, pursuant to s 587 of the Act, on the basis that the application was made vexatiously and without reasonable cause (the ‘dismissal application’). I listed the application for mention and subsequently issued fresh directions in relation to the dismissal application. The September hearing dates for the substantive application were vacated, pending an outcome in relation to the dismissal application.

[4] On 14 August 2017, Mr Salama’s employment at Sydney Trains was terminated. It is demonstrably apparent that Mr Salama’s termination of employment related, inter alia, to a finding by Sydney Trains that he made false bullying allegations against management persons; namely the respondents. Mr Salama then filed an application to the Commission seeking relief in respect to his dismissal, including reinstatement, pursuant to Part 3-1 General Protections of the Act. Attempts at settling this matter were unsuccessful and a s 368 certificate was issued on 26 October 2017 by Hunt C. Mr Salama subsequently pressed his General Protections application in the Federal Court of Australia (the ‘Federal Court proceedings’), in an application in that Court, filed on 9 November 2017 (NSD1977/2017). On 20 September 2017, Mr Salama applied to the Commission for an order staying his Stop Bullying application, pending the outcome of the Federal Court proceedings. Mr Salama also foreshadowed that if he is successful in the Federal Court proceedings, he would make an application for costs against the respondents in relation to the Stop Bullying application.

[5] I convened a further mention of the dismissal application and Mr Salama’s stay application on 5 December 2017. The next day, new directions were issued requiring the parties to submit any further material in relation to the dismissal application (including in respect to the effect, if any, that Mr Salama’s termination of employment had on the dismissal application) and in relation to Mr Salama’s application for the substantive matter to be stayed, pending an outcome of the Federal Court proceedings. I understand the Federal Court proceedings are listed for hearing on 13 February 2019. At the Commission hearing on 14 February 2018, Mr Salama was represented by Mr D O’Sullivan, Counsel, instructed by Michael Vassili Barristers and Solicitors.

[6] On 11 April 2018, the Commission denied Mr Salama’s request for his Stop Bullying application to be stayed and granted the respondents’ dismissal application, pursuant to s 587 of the Act; see: Salama v Sydney Trains and Others [2018] FWC 1845.

[7] On 26 April 2018, the respondents filed an application that Mr Salama pay the respondents’ costs, pursuant to s 611 of the Act (the ‘costs application’). This decision determines that application.

EVIDENCE

[8] Ms Amber Sharp, Solicitor for the respondents, filed the only witness statement in relation to the costs application. Despite being legally represented (by the firm, Michael Vassili Barristers & Solicitors), Mr Salama filed no witness statement, nor did he request a hearing of the application in which Ms Sharp could be cross examined. In these circumstances, I accept her evidence. That said, I have no reason to doubt Ms Sharp’s credit as a witness of truth, particularly given her professional obligations to the Commission as a legal practitioner. In any event, Ms Sharp’s evidence consisted primarily of correspondence sent between the parties and the Commission during the course of these proceedings, which in large part set out the factual background to the matter. Ms Sharp affirmed that she is the legal practitioner with conduct of this matter on behalf of all of the respondents. She said that the fifth respondent, Sydney Trains has paid the legal fees for all the respondents in relation to this matter.

SUBMISSIONS

For the respondents

[9] Ms Sharp submitted that the respondents seek an order for costs against Mr Salama, pursuant to s 611(2)(b) of the Act, on that basis that it should have been reasonably apparent to him that:

(a) an application to stay the Stop Bullying application; or

(b) to defend an application to dismiss the application,

had no reasonable prospects of success.

[10] Ms Sharp outlined the chronology of events in respect to the matter. She referred to a letter which the respondents had sent to Mr Salama’s Solicitor on 23 August 2017 (the letter was attached to her witness statement). The letter included the following text:

‘As you know, your client's employment was terminated effective 14 August 2017.

Even if your client was bullied at work, which is denied, there is no further "risk that [your client] will continue to be bullied at work ...".

Accordingly, the Fair Work Commission has no jurisdiction to make an order for the purposes of section 789FF(1)(b)(i) of the Fair Work Act 2009 (Cth) (FW Act): Shaw v Australian and New Zealand Banking Group Limited TIA ANZ Bank; Bianca Haines [2014] FWC 3408 at [16].

In those circumstances, the application is liable to be dismissed under section 587(1)(c) of the FW Act….

In the event that the application is not discontinued by your client, and it is necessary for our client to file an application seeking an order for dismissal, we are instructed to rely on this letter on the recovery of legal costs in accordance with section 611(2)(b) of the FW Act.’ [Ms Sharp’s emphasis]

The respondents did not receive a response to this letter.

[11] Ms Sharp also referred to my earlier decision (see: [2018] FWC 1845), where I said:

‘[46] In my view, the decision in Willis is ‘on all fours’ with the factual circumstances of this case….

[52] I unreservedly accept that there is no ‘general rule’ in the Commission’s Anti-Bullying jurisdiction which requires a ‘strike out’ application to succeed where the applicant is no longer at work. However, I am satisfied that the circumstances of this case, overwhelmingly compel such an outcome.

[53] Accordingly, I order that Matter AB2017/280 be dismissed as having no reasonable prospects of success under s 587(1)(c) of the Act and in the exercise of my general discretion under s 587, which does not limit when the Commission may dismiss an application. An order to this effect will be issued simultaneously with this decision.’

[12] Turning to s 611(2)(b) of the Act, Ms Sharp referred to Mr Salama’s reliance on the decisions of the Commission in Atkinson v Killarney Properties Pty Ltd & Palm [2015] FWCFB 6503 (‘Atkinson’) and Willis v Capital Radiology Pty Ltd t/a Capital Radiology; Ms Peita Carroll; Ms Marie Gibson; Mr Dominik Kucera [2016] FWC 716 (‘Willis’). In both Atkinson and Willis, the applicants had made applications to the Commission for orders indefinitely staying their Stop Bullying applications, pending an outcome of separate Court proceedings seeking reinstatement. In both cases, the applicants were unsuccessful and their s 789FC applications were dismissed on the grounds that they had no reasonable prospects of success. Ms Sharp noted that in both decisions, the Commission had stated that there is nothing prohibiting the applicants from commencing a new application under s 789FC of the Act, if it became necessary to do so in future. Ms Sharp submitted that in order for Mr Salama’s stay application to be granted, he would need to distinguish Atkinson and Willis. He failed to do so; indeed the Commission found Willis was ‘on all fours’ with the factual circumstances of Mr Salama’s case. Ms Sharp pointed out that Mr Salama had not identified any decisions of the Commission in which an applicant had succeeded in seeking an indefinite adjournment of a s 789FC proceeding.

[13] Ms Sharp noted that the 23 August 2017 letter put Mr Salama on clear notice that his Stop Bullying application was liable to be dismissed under s 587(1)(c) of the Act; which it was on 11 April 2018. In these circumstances, the respondents seek an order for costs from 19 December 2017 (although in the submissions Ms Sharp referred to 2018, which was obviously a mistake), being the date the amended dismissal application was filed. She said this was the latest date at which it should have been very clear to Mr Salama that his Stop Bullying application would be dismissed. Ms Sharp said that these circumstances warrant a departure from the ordinary position that parties bear their own costs in proceedings before the Commission, and would be consistent with the Act’s Object of achieving a ‘fair go all round’. (I note that this object is discretely found in the Commission’s unfair dismissal jurisdiction and not elsewhere, although the exercise of the Commission’s general powers under s 577 of the Act apply to all matters brought under the Act).

[14] Lastly, Ms Sharp submitted that due to the applicant’s wilful disregard of the known facts and case law, indemnity costs should be awarded in this case; see: Stanley v QBE Management Services Pty Limited [2012] FWA 10164.

For Mr Salama

[15] I should say at the outset, it is not entirely clear whether Mr Vassili personally prepared Mr Salama’s submissions, as they were unsigned. If I am wrong about that then the reference to Mr Vassili in this decision should refer to the author of the submissions, although I apprehend for professional purposes, Mr Vassili has responsibility for any communications or submissions filed by his Firm on behalf of Mr Salama, as he had been earlier identified as the representative commencing to act on Mr Salama’s behalf.

[16] Mr Vassili, Solicitor, split his submissions in relation to the application for costs into two sections. Firstly, he dealt with costs incurred by the respondent from the time the application was filed, until the date of the applicant’s dismissal; and secondly, between the period the applicant was dismissed from his employment (14 August 2017) and the hearing of the dismissal application and stay application (13 February 2017). I observe at this juncture, that given the respondents only seek a costs order from 19 December 2017, it is not apparent to me why Mr Vassili made submissions in respect to costs incurred prior to 19 December 2017. In any event, I recount the essence of those submissions in brief.

[17] Turning firstly to the costs incurred by the respondents between when the Stop Bullying application was filed (21 May 2017) and the applicant’s dismissal (14 August 2018), Mr Vassili said paragraph [49] of my earlier decision ‘best’ describes the reasons for the earlier decision:

‘I hasten to add that I am in no position to make findings about whether the applicant’s bullying allegations are valid or not. No case has been run; let alone any evidence properly tested. I am simply observing that it seems to me that the prejudice in this case rests primarily on the named respondents who will have to wait for many months, without being given an opportunity to defend the bullying allegations against them, (which I note they strenuously deny).’

[18] Mr Vassili submitted that these observations demonstrate the Commission did not find that the Stop Bullying application had ‘no reasonable prospects of success’ from the outset. Rather, the proceedings were rendered ‘nugatory’ by the effect of the applicant’s dismissal on 14 August 2017. The prejudice to the named respondents were then taken into account by the Commission. In respect to Willis and Atkinson, those cases involved Stop Bullying applications which were similarly rendered nugatory, under s 789FF(b)(ii) of the Act, when the applicants were dismissed by their employers. Mr Vassili said that as the applicants had been dismissed, the Commission then conducted a balancing exercise in respect to prejudice suffered by the respective parties in considering whether to dismiss the application. The Commission had employed that kind of reasoning in respect to the dismissal application in this matter. On that basis, Mr Vassili submitted that there be no finding made which would enliven an order of costs between the date the Stop Bullying application was filed to the date of Mr Salama’s dismissal.

[19] Mr Vassili then turned his attention to the costs incurred by the respondents between the date of Mr Salama’s dismissal (14 August 2017) and the hearing (13 February 2018). In somewhat confusing syntax, Mr Vassili submitted that the Commission ought to consider whether the applicant had been ‘unreasonable to not agree to the dismissal by consent once termination was made’; in effect, whether he had acted unreasonably when he continued his Stop Bullying application, once he had been dismissed. Mr Vassili said that it was not unreasonable to continue the Stop Bullying application given the following circumstances; which I set out below:

(a) It is agreed amongst all parties that there is ‘no general rule’ in strike out applications for Stop Bullying jurisdiction;

(b) The jurisdictional argument was only enlivened upon the dismissal of the applicant, of which follows the proceedings would have been determined had the dismissal not occurred;

(c) There would necessarily be a subjective assessment of the prejudice caused to the parties;

(d) The applicant sought to stay the proceedings to deal solely with the issue of costs of the Stop Bullying claim after proper ventilation and outcome of Federal Court proceedings dealing with an asserted unlawful dismissal arising from the Stop Bullying claim itself;

(e) If the Honourable Commission was to accede to award costs of the stay application, there would potentially be a substantial injustice to the applicant should he be successful in establishing in the Federal Court:

i. that there was a bona fide basis for the Stop Bullying application; and

ii. there has been an unlawful termination;

(f) What the applicant was merely seeking to achieve in the application for a stay of these proceedings, was to avoid that injustice as to conduct where an employer can elect out of a Stop Bullying suit by termination.

[20] Further, Mr Vassili submitted that should the Commission find in favour of the respondents in respect to the costs application, the decision should be reserved pending the outcome of the Federal Court proceedings, in order to avoid the potential injustice referred to above.

[21] Mr Vassili put that there are unequal financial and bargaining positions between Mr Salama and Sydney Trains. The applicant is in an impecunious position as a result of his dismissal. Mr Vassili also submitted that an award of costs in this situation would ‘embolden the bullying of the applicant. An order for costs against the applicant could have the broader consequence of encouraging workplace bullying.

[22] In reply, Ms Sharp responded to three specific submissions Mr Vassili made (although the respondents expressly rejected all his other submissions). Ms Sharp said the submissions were misconceived when Mr Vassili put that:

(a) the purpose of Mr Salama’s stay application was to deal solely with the costs application (against the respondents) once the Federal Court proceedings had concluded;

(b) an order for costs would be a substantial injustice for Mr Salama should he be successful in the Federal Court proceedings; and

(c) awarding costs against Mr Salama would ‘embolden the bullying of the applicant’.

[23] Ms Sharp noted that the Federal Court proceedings are in relation to an alleged contravention of s 340 of the Act. Those proceedings centre on Mr Salama’s allegation that he was unlawfully terminated because he exercised workplace rights, including inter alia, by filing the Stop Bullying application. Ms Sharp contended that even if he is successful in the Federal Court proceedings, that outcome cannot be relevant to the Stop Bullying application and the respondents’ application for a costs order. The Federal Court proceedings will focus on the reason/s for termination and determine whether it was unlawful. The Court will not make findings as to the merits of the Stop Bullying application.

CONSIDERATION

[24] Given the relatively recent enactment and unique character of the Stop Bullying jurisdiction of the Commission under Part 6-4B of the Act, it is unsurprising that there are few decisions on costs applications, arising under this Part of the Commission’s jurisdiction; see: Application by HWS [2014] FWC 4476 per Hampton C; Application by Hill [2014] FWC 5588 per Hatcher VP; Application by Woods [2015] FWC 6620 per Bull DP; King v Dixen and others [2018] FWC 2433 per Bissett C. In all but one of these decisions there was no order made for costs. I shall refer to that decision of VP Hatcher later. Unlike the Commission’s unfair dismissal jurisdiction, Part 3-2, which has additional discrete costs provisions (s 400A), there is no specific or additional provisions under Part 6-4B dealing with costs applications in Stop Bullying matters. It follows that any such application will fall for determination under the Act’s general costs provisions at s 611 and the principles which have been considered and established by the Commission under that section. Section 611 provides as follows:

‘611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

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).’

[25] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 a Full Bench of the Commission considered the operation of s 611 and summarised the principles to be applied in costs applications. At paras [26]-[30] the Full Bench said:

‘[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:

2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.

[27] In the context of s.570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs  and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.
[28] We now turn to the exceptions to the general rule expressed in s.611(1) and the meaning of the expression ‘vexatiously or without reasonable cause. (endnotes removed)

…

[30] We now turn to the expression ‘without reasonable cause’. A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union., Wilcox J put it this way:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, 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 stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”’

[26] The primary contention of the respondents in this matter is that following the applicant’s dismissal, it should have been reasonably apparent to him that his Stop Bullying application had no reasonable prospects of success. That being so, I refer to a Full Bench decision which further developed the principles to be applied under s 611(s)(b). In Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956, the Full Bench said at paras [18]-[19]:

‘[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief. 
[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’.  In Deane v Paper Australia Pty Ltd11 a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.’  (endnotes removed)

[27] Added to these authorities is the weight of the High Court’s judgement in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 in which consideration was given to the meaning of the phrase, ‘no reasonable prospect’ in the context of s 31A of the Federal Court of Australia Act 1976. The High Court majority (Hayne, Crennan, Kiefel and Bull JJ) said:

‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’

[28] In applying these general principles it is necessary for the Commission to objectively consider whether any of the grounds in s 611(2) apply to the circumstances of this 789FC application. Whether such an application has no reasonable prospects of success is a finding which should only be reached with extreme caution and where the application is manifestly untenable or groundless. A finding of unreasonable prospects of success will need to be established before the Commission exercises its discretion to order some, or all of the other parties’ costs.

[29] I would add that in the Commission’s Stop Bullying jurisdiction there is no general rule in strike-out applications and specifically no automatic conclusion that a strike-out application must succeed if a Stop Bullying application is not discontinued shortly after an applicant’s dismissal. Indeed, there is no general rule that an Stop Bullying application must be dismissed if the applicant’s employment is terminated by dismissal or resignation, although the majority of such cases have observed the obvious, as I did in this application decision at para [53]:

‘Accordingly, I order that Matter AB2017/280 be dismissed as having no reasonable prospects of success under s 587(1)(c) of the Act and in the exercise of my general discretion under s 587, which does not limit when the Commission may dismiss an application. An order to this effect will be issued simultaneously with this decision.’

[30] In Hill v L E Stewart [2014] FWC 4666 (‘Hill v Stewart Investments’), Vice President Hatcher put it this way in the context of firstly, Mr Hill’s failure to prosecute his Stop Bullying application and secondly, his application having no reasonable prospects of success. At para [24] His Honour said:

‘[24] The second reason is that I do not consider that Mr Hill’s application has any reasonable prospects of success. Under s.789FF(1)(b)(ii) of the Act, it is a prerequisite for the making of an order to stop bullying that the Commission be satisfied that “there is a risk that the worker will continue to be bullied at work by the individual or group”. On the facts as stated in Mr Hill’s application, it is clear that the working relationship between himself and L E Stewart Investments Pty Ltd (the precise nature of which was in dispute) ended on 11 March 2014 and has not resumed since that time. There is nothing in the application or in the document which Mr Hill filed on 4 June 2014 pursuant to the directions which would provide any basis for the Commission being satisfied that there is any risk that Mr Hill would continue to be bullied at work by the respondents. Mr Hill sought to characterise certain conduct allegedly engaged in since 11 March 2014 by Mr Stewart as bullying, but on no view could that conduct constitute bullying at work, since as stated no working relationship of any type involving the respondents has existed since that date. The respondents emphatically denied the various allegations of bullying made against them by Mr Hill, and the allegations were never put to the test because Mr Hill did not attend the hearing, but even if Mr Hill had been able to make out those allegations, he could not have succeeded in obtaining an order to stop bullying because the s.789FF(1)(b)(ii) requirement could not have been satisfied.’

[31] Relevantly, I note that although the respondents in Hill v L E Stewart Investments P/L and Others [2014] FWC 5588 were unrepresented, a subsequent application for costs associated with travel expenses incurred by them to attend a conference convened by the Commission, was successful with the Vice President ordering an amount of $420 for such expenses.

[32] In determining this costs application, I have had regard to the relevant principles set out above in the context of the specific circumstances of this case:

1. Mr Salama was dismissed by Sydney Trains on 14 August 2017. Sydney Trains has a comprehensive, lengthy and detailed process which it undertakes when considering whether to dismiss an employee, particularly for misconduct.

2. Shortly after his dismissal, Mr Salama filed a General Protections application involving dismissal under Part 3-1 of the Act. I accept he alleges, inter alia, that he had been dismissed because of the filing of his application for a Stop Bullying order. This application requires findings under s 340 of the Act that Mr Salama had a workplace right and suffered adverse action when he exercised that right, or he was dismissed for a prohibited reason. Various remedies, including reinstatement, are available if these preconditions are established. Civil penalties can also be ordered. In my view, the application before the Federal Court is distinct and separate to the application brought by Mr Salama under the Commission’s Stop Bullying jurisdiction. Obviously, without pre-judging the conclusions of the Federal Court, what would seem clear is that the right to seek stop bullying orders is sufficiently distinct to a finding under the General Protections provisions, that the applicant had been dismissed because of a prohibited reason; namely, the filing of his Stop Bullying application. It is unlikely the Federal Court would (or could) make findings of bullying as alleged, that is the merits of the application; rather, if the applicant is ultimately successful on this basis, the Federal Court’s finding would only go to whether the filing of his Stop Bullying application, was the reason for his dismissal. Even if he was reinstated, any jurisdictional precondition to lodging another Stop Bullying application would arise from that point, not from some historic conduct. In other words, he would be perfectly entitled to lodge a fresh s 789FC application, assuming the jurisdictional foundations are established.

3. At the relevant time, the applicant was legally represented. I note here that the respondents do not seek costs for any time to the filing of their amended dismissal application on 19 December 2017. I do not understand why Mr Vassili addressed costs prior to that time, when it was patently clear no application was made for that period.

4. By letter from the respondents on 23 August 2017, the applicant was on notice that a failure to discontinue his Stop Bullying application in light of his dismissal, might result in this application for costs. Not only did he (or his representative) not respond to this letter, he filed another application under the General Protections provisions of the Act. He then sought to have his Stop Bullying application stayed indefinitely, and if he was successful in his General Protections application, he would seek a costs order against the respondents.

5. As I mentioned in the dismissal decision, the case here is ‘on all fours’ with Willis. I would add that the circumstances here are also similar to those in Atkinson where a Full Bench of the Commission said at paras [22]-[25]:

‘[22] The fact that, at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications, Mr Atkinson had an unfinalised general protections court application in respect of the termination of his employment on 3 June 2015 and the fact that a court has the power to make a reinstatement order in respect of a general protections court application,  do not preclude the Commissioner’s conclusion. Those facts do not mean that at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications there was “a risk that [Mr Atkinson] will continue to be bullied at work”  by the individual or group against whom he made the s.789FC applications.
[23] As a consequence of concluding that one of the pre-requisites for making an order to stop bullying in respect of Mr Atkinson’s s.789FC applications was not satisfied, the Commissioner determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success. There is no error in that determination. The determination is not contrary to authority, including that of the High Court of Australia in Spencer v The Commonwealth. 
[24] Having determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success the Commissioner then exercised his discretion under s.587(1)(c) of the FW Act to dismiss Mr Atkinson’s s.789FC applications. It is evident from the Commissioner’s decisions that, in exercising his discretion to dismiss Mr Atkinson’s s.789FC applications, the Commissioner was conscious of the discretionary considerations raised by Mr Atkinson as to why his s.789FC applications should not be dismissed, including his submissions for relief in respect of his s.789FC applications being constituted by something other than an order. However, the Commissioner was also conscious that Mr Atkinson had made a general protections court application and of the potential consequences of that on Mr Atkinson being able to make another s.789FC application. In the circumstances, it was reasonably open to the Commissioner to exercise his discretion under s.587(1)(c) of the FW Act as he did.
[25] Accordingly, we do not accept that the Commissioner erred in finding Mr Atkinson’s s.789FC applications had no reasonable prospects of success. Nor do we accept the Commissioner concluded he had to dismiss Mr Atkinson’s s.789FC applications once he found they had no reasonable prospects of success. Rather the Commissioner dismissed Mr Atkinson’s s.789FC applications in the exercise of his discretion under s.587(1)(c) of the FW Act.’

While these cases do not deal with costs applications, they certainly deal with similar circumstances – a dismissed employee, a not yet concluded General Protections Court application and an applicant’s request to stay or adjourn their s 789FC application.

[33] In my opinion, Mr Salama would need to distinguish the circumstances in Willis and Atkinson, which he was unable to do. With the knowledge of these decisions, it should have been reasonably apparent to him, and his legal advisors, that his application to have his s 789FC matter remain on foot, had no reasonable prospects of success. I find accordingly, pursuant to s 611(2)(b) of the Act.

[34] It is necessary to say a few things about Mr Vassili’s submissions, which included the use of confusing words or expressions, out of context, such as to make it difficult to understand what was intended.

[35] Firstly, it was said that the Commission did not find Mr Salama’s Stop Bullying application had no reasonable prospects of success from the outset; rather the proceedings were rendered nugatory by the effect his applicant’s dismissal. The first part of this submission is correct; but that is not the relevant period of costs sought by Sydney Trains. Secondly, unless I am mistaken, I apprehend Mr Vassili’s submission seeks to make a distinction between the effect of the applicant’s dismissal and the dismissal resulting in the proceedings being nugatory in the sense of the Commission being still able to make findings as to prejudice to Mr Salama. (Ms Sharp seemed to think the submission had left out the word ‘not’ so as to read the dismissal did not make the proceedings nugatory). The meaning of nugatory as defined in the Macquarie Dictionary is ‘of no force or effect; futile; vain; (Latin: worthless).’ My decision of 11 April 2018, had the consequence of concluding the matter, save as to costs. In other words, the s 789FC application had ‘no force’ and pressing it was ‘futile’.

[36] Secondly, it was submitted that even if the Commission found in favour of the respondents’ costs application, I should ‘reserve’ my decision, until the outcome of the Federal Court proceedings is known. In effect, this is the same outcome Mr Salama seeks from dismissing the costs application. Presumably, he believes that if the Federal Court proceedings are successful, I would either not publish this decision, or even if I did, the respondents would not, or could not, press for any orders made in their favour. To state the obvious, to reserve a decision, is to adjourn an application at the end of a case after evidence and submissions, in order for the Commission to consider the outcome and prepare a decision for publication, as soon as it is drafted and put into a final form. Moreover, Mr Vassili does not understand what reserving a decision means. It most certainly is not preparing a decision and then not publishing it, because it might be of no force or effect as a result of a decision of another Court at some indeterminate time in the future.

[37] Thirdly, it was put that Mr Salama would be prejudiced if he was ordered to pay costs because he was impecunious. Apart from the general principle that impecuniosity is not a determinative factor in costs applications in this Commission, or any Court, there was no evidence of the applicant’s financial circumstances; there was nothing but a bald submission from Mr Vassili that the applicant was impecunious. This would be an insufficient basis to make such a finding, even if I was inclined to do so.

[38] Fourthly, it was submitted that the grant of the respondents’ costs application would ‘embolden the bullying of the applicant’ and/or ‘encourage workplace bullying’. There is not a skerrick of evidence supporting such wild and sensational allegations. I will accord Mr Vassili the benefit of the doubt and put this nonsensical submission down to ‘rhetorical flourish’ and nothing more; others might conclude the allegations are objectionable and insulting. It must be stressed that any party is entitled to pursue its rights under the Act. To describe a party’s success in pursuing their rights in such sensational terms, is unacceptable. It ill behoves a party in properly initiated proceedings in the Commission, to make such assertions, particularly if they arise from the advice of a legal practitioner.

Power to award indemnity costs

Indemnity Costs

[39] There is no doubt that the Commission has the power to award costs on an indemnity basis. This power was discussed in Stanley v QBE Management Services P/L [2012] FWA 10164. In that case, Jones C (as she then was) helpfully set out a number of authorities dealing with indemnity costs in proceedings under the Workplace Relations Act and the Courts generally. At para [24]-[27], the Commissioner usefully set out some relevant authorities on this point, starting with an excerpt from Goffett v Recruitment National Pty Ltd [2009] AIRCFB 626:

‘[49] In Australian Transport Insurance Pty. Ltd. v Graeme Phillips Road Transport Insurance Pty. Ltd Woodward J dealing with a costs application in the Federal Court of Australia isolated the following principle in relation to indemnity costs:

“Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where ‘there is some special or unusual feature in the case to justify the court exercising its discretion in that way’ (Preston v Preston (1982) 1 All ER 41 at 58). It is sometimes said that such costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court’s discretion - for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App Cases 40; Christie v Christie (1873) 8 Ch App Cases 499; Degmam Pty Ltd (In Liq) v Wright (No 2) (1983) 2 NSWLR 354.”

[50] In Oshlack v Richmond River Council, Gaudron and Gummow JJ said:

“It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a ‘solicitor and client’ basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.”

[25] Justice Sheppard said in Colgate-Palmolive Co v Cussons Pty Ltd(Colgate Palmolive) at 233:

"... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion [to award indemnity costs]. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724(Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records)...."

[26] In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch and Anor (No 2), Justice French said:

"... It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case. The case against the BTA was paper thin. ..."

[27] In Commonwealth Bank of Australia v Mohamad Saleh and Ors (Commonwealth Bank decision), indemnity costs were awarded against the defendants, following a finding by the Court that they had sought to defraud the Bank of around $7 million. In the decision on costs, Justice Einstein said:

"[5] There is no doubt but that the Bank is entitled to an indemnity costs order against Mr Edge. Not only was he one of the fraudulent conspirators but significantly he sought to rely in the proceedings on documents which were found to be fabricated. He persisted throughout the whole of the hearing in denying the bank's allegations in respect of his fraud: knowing those allegations to be true. This conduct par excellence constituted relevant delinquency. The case for a indemnity costs against him is plainly a fortiori.
[6] Likewise the case for ordering indemnity costs against Mr Qureshi is clearly made out. He also relied upon invoices and time sheets which have been found to have been fabricated and were at the very heart of his defence. He also persisted throughout the whole of the hearing in denying the bank's allegations in respect of his fraud: knowing those allegations to be true. Additionally he persisted in frustrating the Bank's attempts to obtain access to documents required to be produced by the litigious process: see the judgement in respect of the ultimate obtaining of access to the deep memory of the computer and the circumstances in which only during the hearing when in the witness box [initially as part of the voire dire to ascertain the enquiries which he had made in relation to the existence of material documents] did he come forward with the important information concerning how the money which he had received had been expended. This was delinquent conduct. The case for a indemnity costs against him is also a fortiori.
[7] The cases for indemnity costs orders against Mr Mohamad Saleh and Mr Hassanien Saleh are also quite clear. Although they were not any longer represented during the hearing, their pleadings denying the fraud were before the Court and the Bank was required to prove the fraud. Their denial of the fraudulent allegations which they knew to be correctly made and the vast expense which the Bank was required to undertake to prove its case against them clearly mandates an indemnity costs order being made against each of them."

[40] In Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407, Buchanan J identified one of the foundations for an order of indemnity costs may be on the basis of the findings made in the earlier judgment that the applicant’s case was, in all relevant aspects, based on a falsehood. His Honour said at para [5]:

‘Each of these foundations appears to me to provide a sufficient basis for the award of indemnity costs from the dates specified. As to the first basis upon which indemnity costs have been sought, it is well-established that indemnity costs are not awarded as a punishment against an unsuccessful litigant. However, they will be awarded in appropriate cases to protect a respondent from the financial burden of proceedings which were unjustified and should not have been commenced. Each of the proceedings commenced by the applicant falls, in my view, into this category. In the present case, the lack of merit in each of the proceedings is so marked, and the claim for protection by the respondents against unwarranted financial burden is so well-founded, that there is a sufficient justification for the award of indemnity costs with respect to the whole of each of the proceedings, subject to an issue to which I will return concerning the basis on which the Supreme Court proceedings were transferred to this Court. It is not necessary for me to repeat here the findings which were made in the earlier judgment. The proceedings were, in each case, based on falsehood and were without any legal substance. The respondents are entitled to claim that they should be relieved, so far as an order for costs would achieve this, from the financial burden of defending them.’

[41] It is trite to observe that if costs applications on a ‘party to party basis’ are to be treated by the Commission with caution, given the objects of the Act and the relevant principles, a fortiori are costs applications sought on an indemnity basis. Such orders are rare and unusual. Having considered the circumstances in this case, I do not consider the necessary high threshold has been reached, such as to order costs on an indemnity basis.

[42] However, as I am satisfied that it should have been reasonably apparent to Mr Salama that his s 789FC application had no reasonable prospects of success, at the least by the time of the respondents’ amended dismissal application of 19 December 2017, I am prepared to make an order for costs on a ‘party to party’ basis against Mr Salama for the period after that date.

[43] In that respect, I direct the respondents, to file within 14 days, a Schedule of Costs according to Schedule 3.1 of the Fair Work Regulations. Formal orders will follow as a consequence.

DEPUTY PRESIDENT

Appearances:

Mr M Vassili Solicitor (Michael Vassili Barristers & Solicitors) for the applicant

Ms A Sharp Solicitor (Bartier Perry) for the respondents

Final written submissions:

For the applicant 14 June 2018

For the respondent 21 June 2018

Printed by authority of the Commonwealth Government Printer

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