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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against a decision
issued by Commissioner Whelan on 12 December 2002
Paper Australia Pty Ltd
s.170CE application for relief in respect of termination of employment
Paper Australia Pty Ltd
JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT WILLIAMS
MELBOURNE, 6 JUNE 2003
Application for costs - S.170CJ(1) - "no reasonable prospect of success" - s.170CJ(3) - "unreasonable act or omission in connection with the conduct of the proceeding".
 Mr Deane, whom we shall refer to as the applicant, was employed by Paper Australia Pty Ltd (the respondent) for some 32 years. His employment was terminated by the respondent on 4 September 2002. He sought a remedy pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) alleging that the respondent's termination of his employment was harsh, unjust and unreasonable. His application was dismissed at first instance as incompetent. He appealed but was not granted leave to appeal. This is an application for costs in relation to the unsuccessful appeal.
 The Act makes provision for the exclusion of specified classes of employees from the operation of s.170CE. Among the classes specified are persons who were not employed under award conditions and whose rate of remuneration immediately before termination exceeded a rate specified in regulations made under the Act: see ss.170CC(2) and (3). The construction and operation of those provisions do not require detailed examination here. At first instance the Commissioner upheld the respondent's contentions that the applicant was not employed under award conditions and that his rate of remuneration immediately before termination exceeded the specified rate. As a consequence the Commissioner found that the applicant was excluded from the jurisdiction conferred by s.170CE.
 Both aspects of the decision were challenged by the applicant on appeal. In relation to the first issue, whether the applicant was covered by award conditions, the case on appeal was based on contentions not made at first instance. It had been contended before the Commissioner that a certified enterprise agreement had applied to the applicant's employment whereas it was contended on appeal that it was an award which had so applied. In relation to the second issue, whether the applicant's rate of remuneration immediately before termination exceeded the specified rate, the main question before the Commissioner and the principal issue on appeal was whether certain superannuation payments should be taken into account in calculating the applicant's remuneration.
 Costs were sought in two respects. In the first place, the costs of the appeal were sought pursuant to s.170CJ(1). That section reads:
"(1) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 170CE; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;
the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party."
 It was not disputed that for the purposes of s.170CJ(1)(a)(ii) the appeal instituted by the applicant was a proceeding begun by him. The question is whether he did so in circumstances where it should have been reasonably apparent to him that there was no reasonable prospect of success. If that question is answered in the affirmative the Commission is able to make an order for costs against him. Whether it should do so is a separate although closely related question which requires a separate exercise of discretion.
 We were taken to a number of authorities which were said to bear upon the construction of s.170CJ. None of those authorities deals with the operative expression which now appears in s.170CJ(1)(b), namely: "no reasonable prospect of success".
 The expression "no reasonable prospect of success" also appears in ss.170CF(2)(d), 170CF(3)(b) and 170CF(4). Section 170CF(4) provides for the summary dismissal of an application for relief pursuant to s.170CE, by the issue of an appropriate certificate, if the Commission concludes that the application has no reasonable prospect of success. The construction of the expression in that context was considered by a Full Bench of the Commission in Wright v Australian Customs Service.1 In that case the Full Bench, drawing upon relevant authority relating to summary dismissal of proceedings in various jurisdictions, held that a conclusion that an application had no reasonable prospect of success should only be reached with extreme caution and where the application is manifestly untenable or groundless.
 Making due allowance for the caution which must attend the exercise of a discretion to summarily dismiss an application, it appears to us that the approach in Wright is one we should follow. In other words, unless, upon the facts apparent to the applicant at the time of instituting the appeal, 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.
 In our opinion there was at least one ground of appeal of which it could be said that it was not manifestly untenable or groundless. That was the ground which invited a consideration of whether certain payments made by the respondent to a superannuation fund should be taken into account for the purpose of deciding whether the applicant's remuneration immediately prior to termination exceeded the specified rate. That issue in turn gave rise to a question concerning the nature of employer contributions to defined benefit superannuation funds. There appears to have been no decided case on the issue and its resolution required the construction of legislation of some complexity. For that reason the claim for costs in relation to the institution of the appeal must fail.
 The respondent also sought costs pursuant to s.170CJ(3) of the Act. That section reads:
"(3)If the Commission is satisfied:
(a)that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and
(b)that the first party caused the costs to be incurred because of the first party's unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party."
 The respondent submitted that the applicant had caused it to incur additional costs in the appeal because of an unreasonable act or omission. The basis for the submission is as follows. At first instance the applicant contended that he had been employed under award conditions because his employment was governed by a certified agreement applying to employees at the respondent's mill. This contention was rejected by the Commissioner. While the grounds of appeal challenged the Commissioner's finding in that respect, a further alternative contention was advanced for the first time on the appeal. That contention was that the applicant was employed under an award applying specifically to maintenance employees at the mill. These contentions and the Commission's consideration of them are set out in the appeal decision.2
 It is desirable that a proper case be put at first instance and an appeal ought not be seen as an opportunity to put a different case. Nevertheless in some circumstances, particularly if the Commission's jurisdiction is in question, the Commission will entertain contentions put for the first time on appeal. It is relevant that in this case the contention that the applicant's employment had been governed by the award applying to the respondent's maintenance employees was based on a finding in the Commissioner's decision that the applicant was a "maintenance employee" at the relevant time. In light of that finding we do not think it was unreasonable for the applicant to seek to persuade the appeal bench that he was covered by the award applying to the respondent's maintenance employees.
 Further we think there are some dangers in analysing a party's contentions in a proceeding for the purpose of deciding whether particular contentions are so lacking in merit that even making them could be described as an unreasonable act. This is particularly so where, as in this case, the duration of the oral argument on the appeal was only a few hours.
 The claim for costs in relation to the contentions concerning the application of the award is rejected.
 It was for these reasons that at the conclusion of the hearing we dismissed the respondent's application for costs.
BY THE COMMISSION:
R. Dalton for Paper Australia Pty Ltd.
D. Macken for Mr Deane.
1 PR926115, 23 December 2002 at paras  -  and .
2 PR929820, 2 April 2003 at paras  to .
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