The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[41] It follows from ss 577 and 578 that in exercising the discretion to order costs the Commission must exercise its powers in a manner which is 'fair and just' and takes into account 'equity, good conscience and the merits of the matter.' The broad nature of these considerations suggests that the factors which are relevant to the exercise of the discretion are not confined.

[42] Section 611 contains no positive indication of the considerations which the Commission must take into account in deciding how to exercise its discretion. The discretion conferred is expressed in general, unqualified, terms. As the High Court observed in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 ('O'Sullivan') at [216]:

'Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.'

[43] But, of course, the discretion conferred by s 611(2) must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, consistent with O'Sullivan, the discretion is also confined by the subject matter, legislative context and purpose.

[44] In the present matter, as Ms Marshall seeks to satisfy the Commission that both legs of s 611(a) and (b) have been enlivened, I refer now to the relevant authorities of the Commission on the subject. Although the principles are well known, given both parties have unrepresented, I shall set out these principles in some detail.

[45] Examination of the circumstances under s 611(a) requires consideration of two matters contained therein; 'vexatiously' and 'without reasonable cause'. In Qantas Airways v Carter [2013] FWCFB 1811, the Full Bench of the Commission said at para [17]:

'[17] We refer to the approach we have taken to considering if the provisions of s.611(2)(a) or s.611(2)(b) are established. We first deal with the application made on the basis that Qantas has made its appeal vexatiously. The approach generally taken by members of the Commission as to the meaning to be ascribed to the word "vexatiously" in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust (Nilsen). Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by his Honour was in terms similar to s.611(2)(a) being whether an applicant "instituted the proceeding vexatiously or without reasonable cause". About this provision his Honour said:

"The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage."' [citations removed]

[46] Another Full Bench in Church v Eastern Health [2014] FWCFB 810 ('Church') said at [29]:

[29] The question of whether an application was made 'vexatiously' looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made 'without reasonable cause' and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust (Nilsen) North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously 'where the predominant purpose ....is to harass or embarrass the other party, or to gain a collateral advantage'. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:

"The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously or unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'." [citations removed]

[47] In Hamilton James and Bruce Pty Ltd v Gray [2011] FWAFB 9235, a Full Bench of Fair Work Australia, (as the Commission was then styled), said at paras [18]-[19]:

[18] The phrase "without reasonable cause" was considered in Kanan v Australian Postal and Telecommunications Union ('Kanan'). Section 347(1) of the then Industrial Relations Act 1988 (Cth) provided that:

"A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause." (Underlining added)

[19] In Kanan's case, Justice Wilcox said in respect of the phrase that:

"A proceeding is not to be classed as being launched 'without reasonable cause' simply because it fails. As Gibbs J said in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473, speaking of the Conciliation and Arbitration Act equivalent of s 357 (s 197A):

'... 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. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s.197A.'

In Standish v University of Tasmania [1989] FCA 166; (1989) 28 IR 129 at 139 Lockhart J applied the qualification in ordering costs against an applicant whose case he thought 'misconceived', rather than simply unsuccessful. But, as the Full Court pointed out in Thompson v Hodder (1989) 29 IR 339 at 342, 'there may be cases which could not be described properly as "misconceived" but which would nevertheless be held to have been instituted without reasonable cause'.

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 it appears that, 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."

[48] Similarly, the Full Bench in Church said at [30]-[33]:

[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."

[31] In the context of an appeal the question becomes whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. As Wilcox CJ (with whom Madgwick J agreed) observed in Imogen Pty Ltd v Sangwin:

"The prospect 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 having regard to those matters, there was not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it would seem to me it cannot be fairly described as having been instituted 'without reasonable cause'. This is so even if, in the result, the appeal proved unsuccessful."

"The existence of ''reasonable cause'' within the meaning of s 347 falls to be determined at the time when the relevant proceedings were instituted. The fact that the party instituting the proceedings later discontinues them is therefore not a matter to be taken directly into account in the application of the section. However, an appeal stands in somewhat different case from proceedings at first instance in that discontinuance may bear indirectly on the discretion conferred by s 347 by tending to confirm an impression derived from the grounds of appeal and the reasons for judgment below that the prospects of success on the appeal were slight.

Not without significance to an assessment of the reasonableness of the institution of an appeal are the amount at issue and the nature of the points raised by the notice of appeal. Where, as here, the appeal is essentially against findings of fact made by the trial judge after a two day hearing resulting in a judgment for $16,900 and raises no important or distinctive point of law or principle, the Court may more readily conclude that it was not reasonable in the circumstances to have instituted it. On a fairly fine balance of the relevant considerations and not without hesitation, I have been led to reach that conclusion in this case and agree with the Chief Justice and the orders which he has proposed."

[33] In construing s.570 and its legislative antecedents courts have observed that the test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgement, that is 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed' [citations removed]

[49] For completeness, I refer to the final two paragraphs in Kanan, where Wilcox J said:

'29. 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 it appears that, 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. That is the situation in the present case. The qualification of s.347 applies. The Court has power to order costs against the applicant.

30. I see no discretionary reason to withhold such an order. It is not a matter of the applicant's motives but, rather, that he has put the respondent to the expense of resisting a claim which was always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding. I propose to order that the principal proceeding be dismissed with costs. The costs of the motion will be costs in the principal proceeding and so covered by that order.'

[50] The High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 considered the meaning of the phrase 'no reasonable prospects of success', albeit in the context of s 31A of the Federal Circuit Court of Australia Act 1976. The plurality (Hayne, Crennan, Kiefel and Bell JJ) said:

'59 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.

60 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.'

[51] A person may gain knowledge in the lead up to proceedings (when the opposing party's evidence is filed) or during the proceedings (e.g. after the cross examination of a crucial witness) which, when viewed objectively, would satisfy the test of the person's case having no reasonable prospects of success. It would be from that point that costs may be awarded, if the person did not take steps to recognise that their case was frivolous, untenable, groundless or faulty. For an applicant this may mean discontinuing the matter and for a respondent it may mean making offers to settle a matter. In either case, a respondent to an application cannot discontinue an application which it had not initiated.

[52] As I also apprehend Ms Marshall is seeking indemnity costs, it is necessary to be mindful that such costs orders are rare and unusual:

'[58] 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.'

[53] At the outset, I am bound to observe that the animus Ms Marshall has towards her former employer, CKC, is palpable. It springs from almost every page of Ms Marshall's submissions with an intensity which is baffling and I must say, for my own part, quite concerning. One small example serves to demonstrate this point. Ms Marshall made an improper and extraordinary request that the Commission prepare a 'brief of evidence' to be sent to the Federal Director of Public Prosecutions (the 'DPP') to prosecute CKC for illegal conduct. Ms Marshall pointed to no power under the Act which would permit the Commission to do so. It was a bizarre request.

[54] Ms Marshall was so obsessed by minutia and petty detail that it was difficult to discern what her priorities were in resolving her dispute with CKC, or more lately, pursuing a properly constructed costs application. One of many such examples was her criticism of CKC for being five minutes late in filing their submissions in reply to her costs application. I am reminded of what Pembroke J said in Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 when, although His Honour was there dealing with a vexatious litigant (not the case here), he said at [46]-[47]:

'46. In this case, and in many similar such cases, the litigant's enthusiasm and passionate engagement in his quest for supposed justice, obscures the essential unreality of his expectations; blinds him to the chaos that his pursuit has created; and renders him oblivious to the waste and expense that he has generated or the disproportionate court time that he has consumed. Such a litigant's level of pre-occupation, ruminative thinking, pedantic attention to the minutiae of his case and dogged persistence, serve only to hinder the efficient administration of justice. It is usually made worse by extravagant language, repeated assertions of fraud and the constant denunciation of the tactics or behaviour of the opposing party.

47. Mr Zepinic's conduct is an extreme example, but given his constant resort to exaggerated description and unjustified language, it is useful to recall the advice of Atticus Finch to his daughter Scout. She said: 'Atticus told me to delete the adjectives and I'd have the facts': To Kill a Mockingbird, Harper Lee, ch 7. And it is worth repeating my own words in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 at [32]:

...The promiscuous use of extravagant language tends to obscure the value that may exist in the underlying submission. It is timely to repeat the compelling wisdom of the words attributed to Lord Bingham of Cornhill by Lord Mackay of Clashfern in his address at the Thanksgiving Service for Lord Bingham; The Times, 26 May 2011:

The effective advocate is not usually he or she who stigmatises conduct as disgraceful, outrageous, or monstrous, but the advocate who describes it as surprising, regrettable or disappointing.'

[55] That said, I am obliged to also observe that Ms Marshall's submissions were well structured, neatly set out, grammatically precise and incredibly detailed. I accept she holds a strong and passionate belief as to the injustice she perceives has been occasioned upon her by CKC. However, I do not accept her belief is warranted or justified.

[56] At this juncture, I should say that Ms Marshall's submission alleging CKC's s 739 application to the Commission to determine her claim of being incorrectly classified, as being beyond jurisdiction, is fundamentally wrong. This dispute about her classification, on her own evidence, arose in mid-July 2016 at a time when Ms Marshall was employed by CKC. Accordingly, in accordance with the principles set out in ING Administrators v Jajoo PR974301, a dispute commenced before a person ceases to be employed, is not one jurisdictionally barred by the statute. While the FWO's observations as to the Commission's jurisdiction may have given her some comfort, the FWO has no authority, let alone a power, to determine whether the Commission has jurisdiction in any matter before it.

[57] Moreover, Ms Marshall misrepresented or misunderstood my comments about the Commission's jurisdiction to determine the matter, although I note that at the time, her lawyers would have had no doubt about the Commission's powers. While I agreed that the s 739 dispute was unusual (in the sense it was lodged by the former employer), I did not say it could not be dealt with, as the Commission does almost every day, when such disputes are lodged which allege underpayment claims. It is becoming an ever increasing phenomenon. Most claims are settled during conferences with the Commission (even those where there is no jurisdiction). What I did make clear was that the Commission's jurisdiction does not extend to making orders for the payment of underpaid wages or entitlements, or their enforcement. These are matters for the courts of competent jurisdiction. Nevertheless, the Commission does have the power to (and frequently does) interpret the relevant industrial instrument to answer the question of whether an employee's role and tasks performed, are covered by a particular classification in an industrial instrument. To the extent Ms Marshall spent a significant part of her submission in arguing that very point, it is not the matter she has asked to be determined by this costs application. Accordingly, it is not open to justify her costs application or support an argument as to the alleged self evident correctness of her claim, when that question has never been properly argued or tested under cross examination.

[58] Ms Marshall sought to rely on witness statements from her husband Mr Cameron Marshall and sister Ms Laura Doyle. It is usually the case in contested proceedings that witnesses are required for cross examination in a hearing. Of course, Ms Marshall strongly opposed a hearing. It is incumbent on me to say something about Ms Marshall's inclusion in her materials of these statements, dated 1 November 2017. This untested evidence does not assist the Commission in determining the relevant issues in this costs application. Nevertheless, I will make a few obiter observations on this material.

[59] This evidence went to what Mr Marshall and Ms Doyle had observed about Ms Marshall's demeanour and what she had told them about the Commission's telephone conference on 26 April 2017 and her thoughts and feelings of subsequent events.

[60] Firstly, the statements of Ms Marshall's husband and sister were prepared almost six months after the Commission's conference; a conference neither of them was involved in. There was no evidence that either of them made contemporaneous notes at the time. In other words, they relied on what Ms Marshall told them had happened six months earlier in circumstances where they were not eye witnesses to the events. Their evidence was hearsay (accepting of course the Commission is not bound by the rules of evidence and by this time, Ms Marshall was no longer legally represented). It is uncontroversial that recollection of events is diminished over time. (I note Mr Marshall also referred to events in December 2016). It may safely be assumed after such a passage of time that what Ms Marshall had told them earlier would have been less than pristine than if the event was more contemporaneous to their statements.

[61] Secondly, both witnesses say Ms Marshall had appeared upset and intimidated by Mr Miletto's unauthorised participation in the Commission's conference. For her part, Ms Marshall continues to take issue with this matter, notwithstanding she received an unconditional apology from the FWO as to his agreeing to attend the conference. Moreover, it would seem he was disciplined for doing so. In any event, Mr Miletto said very little during the phone conference and certainly said nothing which could be described as intimidating. Pointedly, Ms Marshall was not alone in this conference. She was represented by two lawyers (Mr Madden and Ms Banks).

[62] Thirdly, in my opinion, the acceptance by the Commission as to the reliability of supportive (and untested) evidence of close relatives of a litigant, should be treated with some caution; see my decision in Uckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123, 25 July 2000 at [329]-[333]. This is so because such evidence will invariably be crafted through the prism of the natural and understandable human tendency to protect a close family member and to believe everything they say, particularly where it may involve the alleged poor conduct or bad behaviour of a former employer of the relative.

[63] It is unnecessary and unproductive for the Commission to address each of the arguments Ms Marshall advanced in support of her largely repetitive and voluminous submissions (many of which were duplicates or triplicates). As identified by her, they include the following allegations:

• bullying behaviour;

• false and misleading statements;

• threatening statements;

• false accusations;

• failing and/or knowingly conniving at an incomplete disclosure of documents;

• undue influence, an abuse of process; and

• unethical conduct, involving dishonesty and deception.

[64] Much of her densely populated submissions were peppered with self serving rhetorical questions said to support these allegations, but without any underpinning objective evidence. Her submissions bear little resemblance to the reality of CKC's unremarkable and measured reactions in reply to a straightforward underpayment claim; albeit one which transmogrified from its original $1,905 to one in excess of $20,675. Ms Marshall's 113 page submission contains numerous alleged examples of deceptive and/or misleading conduct, each of which is followed by the expression 'but that begs the question.'

[65] Ms Marshall's view is that her claim of being wrongly classified is self evidently correct. Whenever CKC has challenged that opinion, she alleges the employer was either engaged in deceptive, misleading, even criminal and corrupt conduct; and further by putting monies into her account, without her agreement, in order to seek to settle her claim, including with a Deed of Release, that this was threatening behaviour, constituting bullying. I will address this latter point first.

[66] It was entirely understandable, why CKC was making offers to settle Ms Marshall's underpayment claim and requiring a Deed of Release to be signed by her. In my opinion, this was an entirely orthodox and conventional exercise where, in response to an employee's underpayment claim, offers and counter offers are exchanged. Such a negotiated approach is one which is endorsed and encouraged by the FWO (see: para [5] above) and this Commission. If offers are put and ultimately accepted, a Deed of Release is invariably the mechanism to conclude the matter. In my view, CKC was engaged in nothing unethical or unusual by its response to Ms Marshall's claims and counter claims; let alone was its conduct or actions threatening or bullying. Secondly, Ms Marshall could hardly claim she was being bullied into signing a Deed of Release when she never signed one. She made numerous unacceptable amendments to the employer's draft deed when, at least at one point, she was represented by a lawyer. Ms Marshall was not threatened or bullied into anything.

[67] Given the tone and content of Ms Marshall's communications with CKC and this Commission, including her strong advocacy of what she perceives to be her legal and industrial rights, and her determination in pursuing these perceived rights, it is apparent that Ms Marshall is no 'shrinking violet'. Even so, at all times, this dispute was under the aegis of the Commission and could have been relisted, at any time, and at short notice, if either party felt intimidated or aggrieved by the actions or conduct of the other. That said, I do not see how any allegation of bullying can be attached to the conduct or actions of CKC at any time.

[68] In my view, Ms Marshall's view that her underpayment claim was self evidently correct and CKC must be wrong and motivated by mala fide intent, is difficult to fathom when she made no request to have her claim determined by this Commission, or as I understand it by a court of competent jurisdiction, even after she lodged a s 372 general protections application in which she indicated she would be taking the matter further.

[69] In my assessment, there is no basis to Ms Marshall's submission that CKC acted vexatiously in filing this dispute. It was doing no more than seeking to resolve a long standing and intractable dispute with Ms Marshall as to her claim of being incorrectly classified. It is the kind of dispute which this Commission regularly encounters (albeit usually filed by employees) and one which the Commission invariably resolves through conciliation.

[70] In addition, the dispute notification was not filed with any mala fide intent. It was expressed in respectful and neutral language; see: para [2] and most certainly was not driven by any desire to cause Ms Marshall hurt, embarrassment or humiliation. Moreover, it was not lodged for any collateral purpose. As I said earlier, proposing offers of settlement with a Deed of Release, is not bullying. CKC's only purpose was to seek the Commission's assistance in resolving a dispute whose resolution had eluded the parties for over 12 months. Importantly, neither party was initially legally represented and that is how the matter ultimately proceeded. Ironically, it was Ms Marshall who first engaged legal representation, which CKC responded to by engaging its own legal advice.

[71] True it is that the employer has conceded it might have acted differently or responded quicker to Ms Marshall's claims. But given CKC's lack of expertise in employment related matters, (it being a small employer in a regional town), it is not surprising that its conduct and actions were not entirely conventional or strictly according 'to the book'. Contrary to Ms Marshall's criticisms, it is to CKC's credit that it has acknowledged its procedural mistakes and sought to rectify them. However, the fundamental question of Ms Marshall's correct classification remained in the background and have never been resolved - despite Ms Marshall's opinion that she has been thoroughly vindicated and her claims are, and remain entirely justified. It follows that the application filed by CKC was not made 'without reasonable cause'. To stress again, there was nothing unreasonable about an employer seeking the Commission's assistance, either through conciliation and/or arbitration (if permitted by the DSP in the Award or Agreement) to resolve a long standing and seemingly intractable dispute over classification coverage, or even whether the Award applied to Ms Marshall at all. Indeed, it was entirely proper for it to do so.

[72] Accordingly, s 611(2)(a) of the Act has not been satisfied as the dispute was not lodged by CKC 'vexatiously' or 'without reasonable cause'.

[73] As to s 611(2)(b) it could not possibly be said that the s 739 application had no reasonable prospects of success. There was a real and 'live' issue between the parties which screamed for resolution.

[74] The fact CKC made limited admissions and acknowledgements and deposited monies into Ms Marshall's account in the hope of resolving her claims, does not establish that Ms Marshall's claim was wholly determined in her favour and therefore by bringing the application, it was bound to fail. Of course, given the parties remain at odds as to the extent of Ms Marshall's underpayment claim, it cannot be fairly said, or at all, that Ms Marshall's claims were bound to succeed in contested Commission proceedings, or in a court of competent jurisdiction; neither course of which has ever happened.

[75] Moreover, even when the Commission ceased to be actively involved in conciliating the matter (around September 2017) and Ms Marshall insisted all communication with her come from CKC directly and not their lawyer, and a new Director took responsibility for the matter, Mr Miller has continued to attempt to negotiate settlement of all claims (including legal costs) directly with her - but to no avail. Indeed, Ms Marshall described these communications as not being a genuine attempt to resolve the differences between the parties. In my view, Mr Miller's efforts were genuine. His emails to her have been conciliatory, courteous, even apologetic.

[76] Accordingly, I am not satisfied that the s 739 dispute notification had no reasonable prospects of success. In these circumstances, s 611(2)(b) is not enlivened.

[77] Finally, in respect to the draft orders proposed in CKC's submission (see: para [25] above), while I understand the employer's desire to have some finality about this matter and recognise that CKC is unrepresented, the proposed orders do not arise from the application for costs made by Ms Marshall. Orders of this kind cannot be made in the absence of consent. In particular:

• (a) Order 1 seeks a declaration that the dispute is settled in favour of CKC in circumstances where I have not even heard a case about the correct classification of Ms Marshall;

• (b) Order 2 seeks to direct the parties to execute a Deed of Release in specified terms. The Commission has no power to direct parties to settle matters; let alone require them to enter into binding terms of settlement against their will;

• (c) Order 3 requires payment of an offer to Ms Marshall, provided she sign a Deed of Release. As she has given no indication of any willingness to do so, the Commission cannot force her to sign a Deed of Release; and

• (d) Order 4 requires the payment of her legal costs amounting to $2,106.50. As I have found no basis for awarding any costs against CKC, and as it expresses its offer of $2,106.50 as a 'sign of good faith', dependant on the signing of the Deed, it is open to CKC to pay whatever it likes, and for whatever reason it chooses. However, it cannot be a term of an order dependant on a Deed of Release Ms Marshall refuses to sign. The Commission cannot force her to do so.

[78] For the above reasons and upon a thorough review of the parties submissions and all of the preceding background material, Ms Marshall has not established the conditions precedent, under s 611 of the Act, for the Commission to take the next discretionary step of ordering Ms Marshall's legal costs be paid in part, or in full by CKC in this matter. Accordingly, the costs application is dismissed. I order accordingly.

[79] Regrettably, the consequences of the outcome of this costs application does not resolve the substantive issue underpinning CKC's original s 739 dispute application. It is open to the parties to have this matter determined through the processes of this Commission (clause 9 - Dispute Resolution of the Modern Award is limited to mediation, conciliation and consent arbitration) or a court of competent jurisdiction. While I doubt the present disposition of the parties is amendable to further settlement discussions between them, as to all Ms Marshall's claims to finality, that course of action remains a possibility and should be seriously considered. In my view, this dispute has gone on for far longer than it ever needed to. These proceedings are otherwise adjourned until further direction or order of the Commission or their discontinuance by CKC as the applicant in matter C2017/1705.

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