Chivers v Commissioner of Police

"Vexatious" 11The Commission, therefore, does have the power to award costs but only in certain circumstances. The Commissioner of Police argues this is one such circumstance in which the Commission can order costs in its favour because the application for re-instatement is "vexatious". 12The Commission has already considered the respondent's Notice of Motion to strike out the application but the respondent did not argue, in that hearing, that the application was "vexatious". The Notice of Motion was dismissed and the Commission held there was no failure on the part of the police officer to prosecute in the circumstance and there was no public interest reason to strike out the application (see Chivers v Commissioner of Police [2011] NSWIRComm 65 dated 3 March 2011). 13As to whether the application is "vexatious", I adopt the reasoning of Backman J in Tapia v Emibarb Pty Limited trading as Lagoon Seafood Restaurant [2005] NSWIRComm 232 where her Honour considered the authorities which guide the Commission's consideration as to whether an application is "vexatious". Her Honour held at [116] - [117]: [116] In Peden v Lake Macquarie Refrigeration Pty Ltd (2003) 134 IR 149 the Full Bench of the Commission examined the meanings of "frivolous" and "vexatious" in the context of s181(2)(c) of the Act. ... [117] The Full Bench in Peden v Lake Macquarie also considered whether the application to the Commission under s84 of the Act was vexatious. At [28] - [30] the Full Bench made the following observations: There is an absence of any discussion as to the nature of the test to be applied to determine whether an application is vexatious for the purpose of s181(2)(c). Counsel for the appellant submitted that the following definition of "vexatious" in Attorney General v Wentworth (1988) 14 NSWLR 481 per Roden J at 487 is "generally regarded in the Commission as useful": It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless. ... Her Honour continued at [118] - [121]: [118] In Attorney-General v Wentworth , Roden J considered whether the appropriate test of whether proceedings are vexatious should be assessed on either subjective or objective grounds, or a combination of both. As the passage extracted by the Full Bench in Peden v Lake Macquarie Refrigeration above illustrates, Roden J held that it was a combination of both. [119] Whether proceedings are instituted by a party without reasonable cause has received much judicial comment. In R v Moore; Ex Parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 Gibbs J said at 473: ...a party cannot be said to have commenced a proceeding 'without reasonable cause', within the meaning of that section, simply because his argument proves unsuccessful. [120] In Kanan v Australian Postal and Telecommunications Union of Australia (1992) 43 IR 257 at 264-265, Wilcox CJ said: 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. [121] In Imogen Pty Ltd v Sangwin (1996) 70 IR 254 Wilcox CJ at 257 dealing with a submission that there was no substantial difference in meaning between "vexatious" and "without reasonable cause" said: I doubt that this is correct; if the two expressions were intended to mean the same thing, there would have been no need for Parliament to use both of them. If there is a difference in meaning, "without reasonable cause" is the lower standard. Her Honour concluded at [122]: There is some overlap in the various meanings adopted above. An application, for example, brought by the applicant could be both frivolous and vexatious, on the objective test for vexatiousness, if it is manifestly groundless. 14I am satisfied that the instant proceedings were commenced so as to protect the applicant's rights in respect of the time in which he had to commence proceedings. However, that fact does not deny that the applicant could, if he succeeded in his appeals before the New South Wales Court of Criminal Appeal, perhaps also succeed in these proceedings. I do not accept the Commissioner of Police can, at this stage in proceedings, succeed with the proposition that the police officer will fail in the proposed appeals to the Court of Criminal Appeal and therefore not be able to press his reinstatement application. 15While the former police officer is incarcerated, he has succeeded on appeal in having substantial offences, for which he was serving a significant gaol sentence, set aside and referred for re-trial. Some of those charges were then no billed and not sent for re-trial. At re-trial he was again convicted of the remaining charges. Appeals on the latter convictions have been delayed, it appears, because of both the District Court's failure to provide the transcript of the re-trial and summing-up and because of the solicitor's tardiness in pressing the appeal. 16However, while I find the solicitor on the record has given no assistance to this Commission at prior mentions as to the state of proposed appeals, finally counsel in the criminal matters was instructed to appear on the Notice of Motion before me and he has persuaded an appeal will probably advance and, if not, this Commission will be notified. The tardiness of a solicitor on the record, however, does not make the claim "vexatious". 17If the former officer did succeed in having his appeal upheld, I am told the remaining question as to his suitability to be a police officer would include his conviction on assault (not appealed). It is difficult to determine whether a person should lose the security of long term employment, in such a circumstance, without the case being fully litigated and all the facts being placed before the Commission. 18The Commission has not heard any evidence in respect of the applicant's substantive claim. No determination has been made in respect of the substantive claim, nor could it be made in the absence of the Commission hearing evidence in the matter. The only application that has been determined is the respondent's Notice of Motion which did not succeed. 19Therefore, I reject the assertion of the Commissioner of Police that the application for re-instatement is a "vexatious" claim. 20I further accept it would be inconsistent with the express wording of s 181(2) of the Industrial Relations Act 1996 for the Commission to award costs against the Commissioner of Police where the Commission has not determined any application made by the police officer. No offers of settlement were made by the respondent in respect of its Notice of Motion so as to enliven s 181(2)(c) of the Industrial Relations Act 1996. In any event, the respondent did not succeed on their Notice of Motion so any offers of settlement, even if made, would be irrelevant. 21However, the circumstances do not allow for an order that costs follow the event, given the solicitor's behaviour on the record. Transcript reveals the Commission, at the many mentions before the Commissioner of Police's Notice of Motion was heard, expressed the view there should be costs orders against the police officer's solicitor for the delays and adjournments of the Notice of Motion. However, it is difficult to give such an order given the limited terms of s 181 of the Industrial Relations Act 1996 notwithstanding costs incidental to proceedings are within the ambit of those limitations. On the Notice of Motion, there shall be no order as to costs.

Orders 22The Court makes the following orders:

1. There shall be no order as to costs on the Notice of Motion. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2011