DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Luke Tamu
V
World Vision Australia
(C2020/3988)

Application for costs

Introduction and background

[1] On 2 June 2020, we issued a decision 1 in which we refused to grant permission for Mr Luke Tamu to appeal a decision made by Deputy President Cross to issue a certificate pursuant to s 368(3)(a) of the Fair Work Act 2009 (FW Act). On 18 June 2020, the respondent to the appeal, World Vision Australia (WVA), applied for an order for costs pursuant to s 611 of the FW Act. This decision is concerned with that application.

[2] The background of the matter requires brief reiteration. Mr Tamu was formerly employed by WVA. On 28 January 2020, Mr Tamu filed an application pursuant to s 365 of the FW Act in which he alleged he had been dismissed by WVA effective from 23 January 2020 in contravention of ss 340, 343, 344, 351 and 352 of the FW Act. On 20 May 2020, Mr Tamu’s application was the subject of a telephone conciliation conference conducted by a staff conciliator of the Commission pursuant to s 368(1) of the FW Act, after two previously-listed conferences had been adjourned at Mr Tamu’s request. At the conference, WVA was granted permission for legal representation. The matter was not resolved at the conference. The staff conciliator immediately reported the outcome of the conference to the Deputy President in writing and, the same day, the Deputy President issued the certificate recording the Commission’s satisfaction that all reasonable steps to resolve the dispute raised by Mr Tamu’s application (other than by arbitration) had been, or were likely to be, unsuccessful.

[3] Our earlier decision records that Mr Tamu’s grounds of appeal against the Deputy President’s decision to issue the certificate, as contained in his notice of appeal filed on 27 May 2020, were as follows:

“- The decision is appealed because on 20/05/2020. I filed a medical certificate with the Commission. The Conciliator seemed not to have noted the certificate on file and when the appellant requested the Conciliator if he had seen the certificate, he said that he didn’t seem to have it on file and if I had submitted a certificate, then he would not proceed with the mediation.

- Since the appellants case against World Vision Australia is a matter of public interest, he appeals against the decision to issue a certificate, and it cannot be said with absolute confidence that all reasonable steps to resolve issues at mediation had been made and unsuccessful, also compounded with the fact that there seems to have been almost no mediation, as a result of refusal by the World Vision’s legal team to produce documents that should have otherwise been produced in June/July 2020 to help the applicant prosecute a mediation.

- The applicant has attached to this application notes of the meeting. The attached notes of the meeting are actually not confidential as these were matters that were discussed when Four World Vision people were on the phone, the Conciliator and the applicant. The confidential matters discussed (8 minutes) have been redacted. The entire meeting lasted 27 minutes instead of the two hours that had been scheduled by the Commission.

- The applicant was told he won’t get copies of transcript and therefore compiled notes, and consistent with the applicant’s understanding, the Commission retains or is supposed to retain transcripts of conciliation (except contents that are confidential), so that if there are any issues, the Full Bench can listen to the transcript and figure out what transpired.” 2

[4] Mr Tamu contended in his notice of appeal that the grant of permission to appeal would be in the public interest because “As per Section 400 (1) of the FW Act, the matter is of public interest and hence this urgent application”.

[5] Mr Tamu’s notice of appeal contained an application for a stay of the Deputy President’s decision to issue the certificate. On the day that the appeal was filed, the presiding member’s chambers sent an email to WVA inquiring whether it opposed the grant of the stay sought by Mr Tamu. This email was copied to the lawyers who had acted for WVA at the conference conducted on 20 May 2020, Kingston Reid. Kingston Reid replied to the email the same day stating that WVA opposed the grant of a stay. In lieu of hearing the stay, the presiding member determined that there should be an expedited hearing on the question of permission to appeal. To that end, on 27 May 2020, Mr Tamu was directed to file an outline of submissions addressing this question by 5.00pm on 29 May 2020, and a telephone hearing was listed concerning permission to appeal for 2.00pm on 1 June 2020. There was an additional direction that any application for permission for legal representation at the hearing was to be filed by 5.00pm on 29 May 2020.

[6] At 4.17pm on 29 May 2020, Kingston Reid lodged an application for permission for legal representation on behalf of WVA. The application relevantly stated:

“3. Permission is sought in accordance with section 596(2)(a) of the FW Act on the basis that legal representation would enable the matter to be dealt with more efficiently. The complexity of the matter is relevant in determining whether the granting of permission would give rise to greater efficiency, however, it is not the sole determinant of that matter.

4. The Respondent submits that the granting of permission in this case will enable the matter to be dealt with more efficiently, particularly having regard to the complexity as well as constraints on the Respondent's capacity to deal with this matter internally.

5. The matter is complex given that:

(a) the Appellant has filed applications in different jurisdictions relating to the same facts and circumstances;

(b) Kingston Reid has assisted the Respondent in the preparation of its response to the general protections application as well as its response to the applications filed in VCAT;

(c) the Appellant has misconceived the notion of confidentiality and has breached confidentiality by revealing what has transpired in the conciliation before the Commission. This in itself goes to the public interest consideration and supports an argument that granting permission to appeal would be contrary to the public interest;

(d) the Appellant has not clearly articulated any legal error in respect of the decision to issue a certificate noting that the issuing of a certificate involves the exercise of a discretion;

(e) the Appellant has also filed a Form F1 seeking orders to produce documents amongst other things;

(f) the Appellant has repeatedly contacted staff of World Vision Australia despite multiple requests for him not to do so; and

(g) the Respondent does not have in-house legal counsel dealing with this matter.

6. For the reasons above, the granting of permission to be represented will enable the matter to be dealt with more efficiently, as a legal representative will be able to focus on the relevant issues and present the relevant information in a concise manner.”

7. The Respondent submits that the relevant prescribed conditions of section 596(2) of the FW Act have been met. The Respondent therefore submits that the Commission ought to exercise its discretion to grant permission for it to be represented in this matter.”

[7] It may be noted that WVA had not to that point filed a Form F53 notice advising the Commission (and Mr Tamu) that Kingston Reid acted for it in relation to Mr Tamu’s appeal, as required by rule 11(1) of the Fair Work Commission Rules 2013 (FW Rules), nor did it do so at any time afterwards.

[8] At 4.35pm on 29 May 2020, Mr Tamu sent an email to the Commission advising that he opposed Kingston Reid appearing on behalf of WVA “as the matter is not complex and no need for lawyers to avoid what misinformation may be provided to the Full Bench”. Mr Tamu did not file an outline of submissions concerning the issue of permission to appeal by 5.00pm on 29 May 2020, as required by the directions, although he sent some other documents of limited relevance to his appeal to the Commission at various times. As our earlier decision states, Mr Tamu emailed a written submission to the Commission a few minutes before the commencement of the hearing on 1 June 2020 which was principally concerned with the merits of his general protections dispute with WVA and barely addressed the issue of the certificate and his appeal grounds.

[9] At the commencement of the hearing on 1 June 2020, a lawyer employed by Kingston Reid sought to appear for WVA. We advised the parties that we would defer ruling on WVA’s application for permission for legal representation until after we had heard Mr Tamu’s oral submissions. After Mr Tamu had completed his submissions, we advised that we did not consider it necessary to hear from WVA and, consequently, that it would not be necessary to rule on the question of permission for legal representation. We then reserved our decision and adjourned.

[10] Our decision was published the following day in which, as earlier stated, permission to appeal was refused. We concluded that Mr Tamu’s appeal grounds and the further proposition raised in his appeal submissions were “entirely lacking in merit” for five identified reasons, 3 that it was not arguable that the Deputy President’s satisfaction that all reasonable attempts to resolve the dispute between Mr Tamu and WVA had been or were likely to be unsuccessful was legally unreasonable,4 and that the appeal raised no issue of legal principle, general importance or wider application.5

The costs application and submissions in support

[11] WVA’s costs application stated that the grounds for the application were as follows:

1. Mr Luke Tamu appealed the decision of Deputy President Cross to issue a certificate in accordance with section 368(3) of the Fair Work Act 2009, vexatiously and without reasonable cause.

2. The appeal lodged by Mr Tamu is one of seven applications filed by him against World Vision Australia in various jurisdictions since the termination of his employment.

3. During the permission to appeal hearing before the Full Bench, Mr Tamu acknowledged that it was obvious at the conciliation before the staff conciliator that the parties were not going to agree to a resolution of the matter. Despite knowing this, he still proceeded to lodge an appeal against the issuing of the certificate.

4. At paragraph 17 of the Full Bench decision refusing Mr Tamu permission to appeal, the Full Bench noted that Mr Tamu’s appeal grounds and the further propositions raised in his appeal submissions were entirely lacking in merit.

5. The Full Bench also noted that given the fixed positions of the parties at the conciliation, it was reasonably available to be concluded that a further conference would serve no purpose and would be unlikely to resolve the dispute.

6. Given the above, it should have been clear to Mr Tamu that all reasonable attempts to resolve the dispute were unsuccessful or were likely to be unsuccessful and therefore apparent his appeal of the decision to issue a certificate had no reasonable prospects of success.

7. In circumstances where Mr Tamu has brought a multitude of proceedings, including an anti-bullying application 5 months after his employment was terminated and an appeal entirely lacking in merit, we believe that this is an instance where the deterrence element of section 611 of the Fair Work Act 2009 is appropriate by making an order for costs.

[12] WVA attached an itemised schedule of costs to its application. This schedule is reproduced in the annexure to this decision.

[13] WVA was directed to file written submissions in support of its costs application, and it did so on 26 June 2020. It submitted, in summary:

• since his dismissal from employment with WVA, Mr Tamu has filed a total of 7 applications in various jurisdictions relating to the same facts and circumstances, 3 of which had been filed in the Commission;

• in the current matter at first instance, Mr Tamu had a fixed position that he would only settle the matter on the basis that he was reinstated and was not willing to consider other possible resolutions;

• WVA made it clear that it was not willing to offer Mr Tamu reinstatement;

• despite knowing that his position and that of WVA would not change, and agreeing at the conciliation conference on 20 May 2020 that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful and requesting that a certificate be issued, Mr Tamu proceeded to lodge an appeal against the decision to issue a certificate pursuant to s 368(3) of the FW Act on 27 May 2020;

• on 29 May 2020, rather than filing submissions addressing the issue of permission to appeal as directed, he filed a Form F72 – Application for an order to stop bullying, notwithstanding that his employment had ended several months before;

• on 3 June 2020, Mr Tamu filed an application in the Federal Circuit Court of Australia alleging breaches of the general protections provisions of the FW Act;

• since his dismissal on 23 January 2020, Mr Tamu has sent a substantial amount of correspondence to VCAT, the Commission, staff members of WVA and Kingston Reid,

• Mr Tamu has resisted requests to desist from sending correspondence to WVA and its staff members and to communicate only with Kingston Reid;

• Mr Tamu’s appeal was vexatious, in that it was a part of a pattern of behaviour that involved multiple applications and bullying and harassment of WVA and its staff in order to force WVA to reinstate him;

• Mr Tamu’s appeal was also instituted without reasonable cause since, on the facts known to Mr Tamu at the time, it was clear that his appeal had no prospect of success;

• it should also have been reasonably apparent to Mr Tamu that his appeal had no reasonable prospect of success at the time he instituted it because the appeal application did not provide any relevant version of the facts that could have given rise to a successful claim;

• further, when prior to the hearing the parties were provided with a copy of the conciliator’s report which specified that both parties agreed that all reasonable attempts to resolve the dispute had been or were likely to be unsuccessful, this must have informed Mr Tamu that his appeal had no reasonable prospects of success;

• the Full Bench’s conclusion that Mr Tamu’s appeal grounds and submissions were entirely lacking in merit must demonstrate that the appeal had no reasonable prospects of success; and

• the discretion to award costs should be exercised in order to permit WVA to recover its costs of the appeal (which represent only a small proportion of the total costs which Mr Tamu has caused WVA to incur to date), and in order to deter him from further vexatious behaviour.

Consideration

[14] The power to award costs under s 611 of the FW Act is limited. The section provides:

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).

[15] In Hansen v Calvary Health Care Adelaide Limited 6 a Full Bench said in relation to s 611 generally:

“[15] It is trite to observe that the statutory and policy imperative underpinning a costs application under the Act, is that a person in a matter before the Commission must bear their own costs. So much is plainly obvious by the precise and unambiguous language of s 611(1).

[16] However, the statutory scheme sets out the relatively circumscribed circumstances in which an order for costs might be found by the Commission to be appropriate in a particular case. It includes the exercise of discretionary power where the Commission is satisfied that one, or more of the circumstances set out in s 611(2), has been established. If such circumstances are established, the Commission, in the broad exercise of its discretion, may make an order that a person/s bear some, or all of the costs of another person, in relation to the application, including on an indemnity basis, or decline to make any order at all.”

[16] The relevant principles concerning the interpretation and application of s 611(2)(a) were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing 7 and may be summarised as follows:

• An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.

• An application is not made without reasonable cause simply because the application did not succeed.

• Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.

• If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.

• In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there is a not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.

• An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, is manifestly groundless or discloses a case where the tribunal is satisfied it cannot succeed.

[17] In relation to s 611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd 8 as follows (footnotes omitted):

“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:

•  ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

•  A conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”

[18] We are satisfied that Mr Tamu’s appeal was lodged without reasonable cause because, on the facts known to him at the time the appeal was lodged, the appeal had no substantial prospect of success. The following facts were known to Mr Tamu at the time he lodged his application:

(1) A commission staff member had conducted a conciliation conference in relation to Mr Tamu’s general protections application.

(2) At the conference, Mr Tamu’s position was that he was prepared to settle his application only on the basis that WVA reinstated him, and WVA was not prepared to countenance this.

(3) WVA indicated at the conference that it was prepared to consider other settlement options, but Mr Tamu was not prepared to countenance any settlement which did not involve reinstatement.

(4) Both parties agreed at the conference that all reasonable steps to resolve the dispute had been or were unlikely to be successful and requested that a certificate be issued

[19] These facts rendered unarguable the proposition that the Deputy President erred in making the discretionary assessment that all reasonable steps to resolve the dispute raised by Mr Tamu’s application (other than by arbitration) had been, or were likely to be, unsuccessful.

[20] For the same reasons, we consider that it should reasonably have been apparent to Mr Tamu that his appeal had no reasonable prospects of success.

[21] We are not prepared to find that Mr Tamu’s appeal was lodged vexatiously. As was made clear in Church, in determining whether an application was lodged vexatiously, it is necessary to focus on the applicant’s motive or purpose. It may be accepted that Mr Tamu has lodged multiple applications in various jurisdictions in respect of his dismissal by WVA (as he did with respect to his dismissal by a previous employer). However, it is not a necessary inference to be drawn from this that Mr Tamu’s purpose in lodging these applications is to harass WVA or to seek some collateral advantage. There is no dispute that Mr Tamu was dismissed by WVA and it appears to us that he genuinely seeks a remedy at law, namely reinstatement, in respect of this dismissal on the basis that it was unlawful. The appeal before us arguably had some degree of connection to this objective, in that Mr Tamu appears to have been frustrated at his incapacity to obtain the remedy he seeks via the conciliation process. We are not in a position to draw any conclusion from WVA’s allegations concerning Mr Tamu’s extra-curial contact with WVA staff, since these have not been the subject of any evidence. The institution of the appeal, and perhaps some of the other litigation referred to in WVA’s submissions, may have been misguided and irrational, but that does not necessarily make it vexatious.

[22] Because we are satisfied that the jurisdictional prerequisite in s 611(2) is satisfied, it is necessary to consider whether we should exercise our discretion in favour of awarding costs. WVA’s principal submission is that we should exercise our discretion in favour of awarding costs in order to enliven the “deterrence element” of s 611. We assume this means that costs should be awarded in order to deter Mr Tamu from instituting or continuing other legal proceedings against WVA. If so, we do not accept the submission. As earlier stated, Mr Tamu appears to us to be seeking a remedy in respect of his dismissal by WVA which he contends was unlawful. We have no basis to assess the merits of Mr Tamu’s contention that his dismissal is unlawful and for that reason we would be reluctant to award costs as a deterrent to him continuing to seek a remedy in relation to his dismissal. In this connection, we note that Mr Tamu has commenced proceedings in the Federal Court concerning his dismissal since we refused him permission to appeal, and it would not seem appropriate for us to award costs for the purpose of deterring him from continuing with those proceedings.

[23] WVA otherwise submits that it is entitled to recover the legal costs it incurred in responding to an appeal that was devoid of merit. However, simply because the appeal was without merit does not mean that the costs incurred by WVA should be laid at Mr Tamu’s door. In that connection, we consider that the following propositions are relevant:

(1) As earlier stated, WVA never filed a Form F53 notice advising that Kingston Reid acted for it in relation to the appeal as required by rule 11(1) of the FW Rules. The Note which follows rule 11(1) relevantly states that: “A person may want to lodge a notice under this subrule (and serve the notice in accordance with rule 41) so that: … (b) all other parties to the matter are given notice that costs are being incurred by the person for which a party (or their lawyer or paid agent) could be liable if an order for costs is made against them by the Commission”. Accordingly, WVA did not place Mr Tamu on notice that it was incurring costs for which he could ultimately be liable.

(2) Although WVA applied for permission for legal representation in the appeal, such permission was never actually granted. It is difficult to identify a proper basis to award costs to a party in respect of legal representation in the Commission for which permission under s 596(2) of the FW Act has not been obtained.

(3) The basis for which permission for legal representation was sought was under s 596(2)(a) – that is, legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. It was ultimately not necessary for us to deal with WVA’s application for permission for legal representation because it was not necessary to hear from WVA in order to dispose of Mr Tamu’s appeal. It could hardly be said therefore, from the current perspective, that legal representation would have facilitated the matter being dealt with more efficiently. Nor do we consider that the appeal involved any complexity that required the assistance of legal representation.

(4) We note that WVA did not seek permission for legal representation under s 596(2)(b) – that is, it was not contended that it would be unfair not to allow WVA to be represented because it was unable to represent itself effectively. That makes available the inference that it was not necessary for WVA to engage lawyers in the matter because it was capable of representing itself.

(5) The directions made in respect of the appeal did not require WVA to file any written submissions or take any other step in relation to the appeal. Further, as already stated, WVA was not called on to make any oral submissions at the hearing.

[24] Having regard to the above matters, we decline to exercise our discretion to award costs. We do not consider, in summary, that there is a proper basis for Mr Tamu to be visited with the legal costs which WVA chose to incur in the circumstances described.

[25] WVA’s costs application is therefore dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723348>

 1   [2020] FWCFB 2894

 2   Ibid at [11]

 3   Ibid at [17]

 4   Ibid at [18]

 5   Ibid at [19]

 6   [2016] FWCFB 8162 

 7   [2014] FWCFB 810, 240 IR 377 at [23]-[33]

 8    [2011] FWAFB 4014, 211 IR 374

IN THE FAIR WORK COMMISSION

No. (C2020/3988)

- and -

BILL OF COSTS

COSTS OF THE RESPONDENT

COSTS PURSUANT TO SCHEDULE 3.1 SCALE OF COSTS FAIR WORK REGULATIONS 2009