Construction, Forestry, Mining and Energy Union v BMD Constructions Pty Ltd

PArties' submissions 4 The respondent submitted that it is entitled to an award of costs because the Court should be satisfied that the matters set out in s 570(2)(a) and/or (b) were made out. That is, the respondent submitted that the Court should be satisfied that the applicant either vexatiously or unreasonably initiated the Application given that it: (a) was not a holder of a certificate issued pursuant to section 369 of the [FW] Act; (b) could not transition from being Mr Richards' representative to Applicant in the substantive matter; and (c) was not entitled to represent the industrial interests of Mr Richards given the nature of his employment, the nature of the work he performed and was to perform and the location of the work. 5 Whilst the respondent's submissions reflect that s 570(2)(a) of the FW Act requires the court in an appropriate case to consider whether or not a proceeding was instituted vexatiously or without reasonable cause, I do not consider that there is any basis for attributing vexatious conduct to the applicant in this case. As Moore J observed in Dowling v Fairfax Media Publications Pty Ltd (2009) 182 IR 28; [2009] FCA 339 ("Dowling") at 45 [52] with respect to the equivalent provision in the Workplace Relations Act 1996 (Cth) ("WR Act"), the task of applying the statutory provision involves "a qualitative assessment of the proceeding in its entirety, focussing of course on the party that 'instituted' the proceeding". Notwithstanding the respondent's reference in written submissions to the applicant's vexatious conduct, there is no reason to suppose that the applicant was "actuated by a desire to harass the respondent": see Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257; [1992] FCA 539 ("Kanan") at 264. It is evident that, in instituting the proceeding, the applicant was motivated to obtain relief for Mr Richards, who had been a union member for many years. Accordingly, to the extent that the word "vexatious" entails some notion of a desire to harass, it has no application in this case. So far as the respondent's reliance on s 570(2)(a) is concerned, the real question is whether the proceeding was begun "without reasonable cause". 6 As to lack of reasonable cause, the respondent submitted that the applicant "must have or should have been acutely aware that its Application had a high chance of failing prior to the proceedings commencing". In making this submission, the respondent referred to the following matters: (1) that the applicant instituted the proceedings in its own name instead of Mr Richards' name, although his was the name on the certificate issued under s 369 of the FW Act; (2) the relevant enterprise agreements did not in terms cover leading hands or supervisors, such as Mr Richards at the time his employment was terminated; and (3) under its own rules, the applicant lacked standing to represent Mr Richards in these proceedings. The respondent further submitted that "each of [these] matters was capable of itself or in combination to cause the failure of the Application on technical or substantive grounds" and that [notwithstanding] the existence of those matters and the relative ease with which they could be identified or ascertained, the Applicant persisted in bringing the proceedings regardless". 7 As already noted, the respondent also invoked s 570(2)(b), submitting that it "has been forced to file pleadings and an application to secure the discontinuance or dismissal of the proceedings and those costs have accordingly been unnecessarily incurred". The respondent further submitted that "the Applicant's conduct in failing to promptly discontinue its Application upon being served with a copy of the Interlocutory Application ensured that the Respondent [would] incur further and unnecessary costs". The respondent continued: The Applicant was served with the interlocutory application and affidavit of Stephen Hughes in support on 23 November 2012, such application having been earlier foreshadowed in conjunction with the earlier mention. It was not until 12 December 2012 (2 working days prior to the scheduled hearing of the interlocutory application) that the Applicant communicated its desire to have the Application dismissed. As noted above, this was without prior communication, intimation or negotiation with the Respondent between 23 November 2012 ands 12 December 2012. … The combined effect of the Applicant not engaging in any communication or negotiation subsequent to the service of the interlocutory application and filing of the Affidavit of Mr Richards containing several assertions contrary to the evidence deposed to in Mr Thomas' affidavit strongly suggested to the Respondent that the interlocutory application would be contested. The respondent submitted that, as a result, it had no reasonable alternative other than to incur various nominated costs and expenses associated with the pursuit of its interlocutory application, including the costs of briefing senior and junior counsel. 8 In relation to s 570(2)(a) of the FW Act, the applicant submitted that the effect of the certificate issued under s 369 in Mr Richards' name and the proper construction of s 371(1) was to permit it to institute the substantive proceeding; or, alternatively, the issue was an arguable one. Accordingly, The Union's claim in this respect could not be described as "manifestly groundless" nor "bad beyond argument" especially when considered at the time of filing the application. Accordingly, it was not instituted without reasonable cause. 9 As to the applicant's entitlement to represent the industrial interests of Mr Richards, the applicant submitted that it had at least "an arguable case that Mr Richards fell within the parameters of cl 2 of [its] Rules". Further, the applicant submitted that "when considered on facts apparent to the Union at the time of instituting the proceeding, it cannot be said that it ought to have known that there was no substantial prospect of success". 10 In relation to s 570(2)(b) of the FW Act, the applicant submitted that it did not engage in an unreasonable act or omission that warranted the displacement of the usual prohibition on costs contained in s 570(1).

consideration 11 As will become apparent, the procedural history of this proceeding bears on the outcome of the respondent's costs application in more than one way. 12 The originating application was filed on 9 October 2012. On the same day, the applicant also filed a certificate under s 369 certifying that: An application pursuant to s 365 of the Fair Work Act 2009 (the Act) was made by Mr Rodney Richards alleging that he was dismissed by BMD Constructions Pty Limited in contravention of Part 3-1 of the Act. Fair Work Australia conducted a conference to deal with the dispute on 1 October 2012. Pursuant to s 369 of the Act, Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. 13 The respondent filed a notice of address for service on 19 or 20 November 2012; and on 23 November 2012, the respondent filed an interlocutory application seeking the following orders: 1. The Applicant is not the holder of a Certificate issued pursuant to section 369 of the Fair Work Act 2009 by Fair Work Australia and is precluded from bringing originating application in matter VID778 of 2012 before the Court pursuant to Rule 34.03(2) of the Federal Court Rules 2011 and Section 371(1)(a) of the Fair Work Act 2009. 2. The Applicant is not entitled to represent the industrial interests of Mr Rodney Richards and is without standing to bring the originating application in matter VID778 of 2012 before the Court pursuant to Section 540(2) of the Fair Work Act 2009. 3. The Applicant's originating application in matter VID778 of 2012 before the Court be set aside in whole pursuant to Rule 13.01(1)(a) of the Federal Court of Australia Rules 2011. 4. The Applicant pay the Respondent's costs of and incidental to this Application and matter VID778 of 2012. 5. Any other order that the Court deems necessary. The respondent's interlocutory application was supported by an affidavit affirmed by its solicitor, Mr Stephen Hughes, on 19 November 2012. 14 A directions hearing listed for 23 November 2012 was vacated and, instead, the respondent's interlocutory application was listed for hearing on 17 December 2012. 15 On 4 December 2012, the applicant filed an affidavit sworn by Mr Richards on 30 November 2012. 16 On 12 December 2012, the applicant's legal officer wrote by email to the respondent's solicitors advising that she was instructed to discontinue the matter. On 14 December 2010, the Court ordered by consent that both the interlocutory application and the substantive proceeding be dismissed. As permitted by the Court's orders of 14 December 2012, the parties filed submissions on costs on 19 December 2012. On the same day, without leave, the respondent filed the affidavit of Mr Thomas, its Human Resources Manager. Subsequently, on 20 December 2012, the respondent filed submissions on costs as amended.

Whether the proceeding was instituted without reasonable cause 17 In determining whether or not a proceeding was instituted without reasonable cause, the following comments of Wilcox J in Kanan at 264 are helpful. 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. 18 A Full Court of this Court endorsed this approach in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [51]-[52] per Gray, Cowdroy & Reeves JJ. This approach continues to be applied: see, for example, Reeve v Ramsay Health Care Australia Pty Ltd (No 2) [2012] FCA 1322 at [10]. 19 In the earlier decision of Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, Northrop J said (at 272) in respect of s 197A of the then Conciliation and Arbitration Act 1904-1975 (Cth), which was substantially in the same terms as s 570(2) of the FW Act: The policy of s 197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court. 20 His Honour went on to say (at 274-275): Section 197A is to be considered when proceedings in the court have been completed and dismissed. … Great care must be exercised to ensure that in finding that a party has instituted proceedings vexatiously or without reasonable cause, that party is not improperly deprived of his freedom from liability to pay costs to an opposing party. The test is a substantial one. In considering this matter the court must have regard to all the material properly before it. The test is not subjective to the party instituting the proceedings as at the time of the institution of the proceedings. The conduct of the opposing party prior to the institution of the proceedings may be relevant in deciding whether the proceedings were instituted vexatiously or without reasonable cause. The conduct of the opposing party both prior and subsequent to the institution of proceedings may be relevant to the discretion remaining in the court. It may be difficult to satisfy the test where disputed questions of fact arise and the proceedings eventually are dismissed because the court finds facts adverse to the party instituting the proceedings. Where the test is satisfied, having regard to the general policy of the section, the court may, nevertheless, in the exercise of its discretion, make no order as to costs. 21 By its interlocutory application of 23 November 2012, the respondent first challenged the applicant's entitlement to institute the proceeding upon the basis that Mr Richards, rather than the applicant union, was named in the certificate issued under s 369 of the FW Act. Since the parties agreed to terminate the proceedings, the Court was not called on to determine the issue, but the respondent raised the point again with respect to costs. Here, however, the focus was on whether the issue was fairly arguable, rather than on its final determination. 22 Section 369 provides that "[i]f FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect". A certificate is a prerequisite to a general protections court application. Section s 371(1) provides that "[a] person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) FWA has issued a certificate under section 369 in relation to the dispute; or (b) the general protections court application includes an application for an interim injunction" (emphasis added). This proceeding was begun by a general protections court application. 23 The applicant argued that the s 369 certificate issued on 1 October 2012 (see [12] above) related to the very dispute that was the subject of the current application and that there was therefore no impediment to the proceeding of the kind urged by the respondent. Referring to the terms of the relevant statutory provisions and Dodds-Streeton J's reasons for judgment in Shea v TruEnergy Services Pty Ltd (No 1) (2012) 204 FCR 456 ("Shea"), the applicant submitted that decisions of the Federal Magistrates Court requiring an identity between the parties to the proceeding and those named in the s 369 certificate were wrongly decided. In Shea, Dodds-Streeton J rejected a narrow construction of the expression "in relation to the dispute" in s 371(1). Her Honour held that a general protections court application made "in relation to" a dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained: Shea at 467 [70]. Without expressing any definitive view on the question, having regard to the breadth of the statutory expression "in relation to the dispute" and in view of Shea, the applicant's position with respect to the s 369 certificate of 1 October 2012 is at least an arguable one. 24 Indeed, the respondent itself said in written submissions that one reason for the briefing of senior and junior counsel was "[t]he lack of judicial pronouncements in respect of the procedural requirements surrounding the Certificate". This statement also tends to support the view that the certificate question was not straightforward and that the applicant had at least an arguable case. 25 Accordingly, the applicant's position with respect to the s 369 certificate at the time it instituted the proceeding cannot be described as without prospect of success. I therefore reject the respondent's submission that, having regard to the s 369 certificate, the application was instituted without reasonable cause. 26 Further, as will be apparent by now, in its interlocutory application, the respondent also challenged the applicant's entitlement to represent Mr Richards. The issue was not, of course, determined since the parties agreed on consent orders terminating the substantive proceeding. The respondent raised the issue once again on its costs application but the only question here is whether, at the time it instituted the proceeding, the applicant had an arguable case in the sense referred to by Wilcox J in Kanan. 27 It was apparently common ground that the applicant union was entitled to represent the industrial interests of its members in accordance with cl 2 of its Rules. This meant that in order to be eligible to be a member of the applicant union, a person had generally to be employed in, or competent to be employed in, or in connection with, certain industries or trades as set out in cl 2. 28 In his 19 November 2012 affidavit, Mr Hughes stated that Mr Richards was employed by the respondent "as a Foreman in relation to civil works involving road maintenance in Queensland". Annexed to this affidavit was the respondent's offer of employment to Mr Richards dated 2 July 2012 and the applicant's Rules. In this way, the respondent sought to support its claim that the applicant did not have standing to represent Mr Richards under its Rules. 29 In his 30 November 2012 affidavit, however, Mr Richards deposed that he had been a member of the applicant union since about 1988 and that, whilst he was employed as the respondent's site manager, he considered himself "eligible to be a member of the CFMEU as [he] also [was] employed on the tools". Mr Richards deposed that his employment with the respondent involved him devoting some 60% of his time to on-site labouring; and that, during his time as site manager, he completed a variety of works (e.g., driving roller, laying drainage, operating compacting equipment, general labour, crane operation, hand excavation). He further deposed that "[a]t all relevant times during the employment period [he] was employed by BMD in a classification listed in BMD Construction Pty Ltd Victoria Enterprise Bargaining Agreement 2010". 30 In his 19 December 2012 affidavit, which as already indicated was filed without leave, Mr Thomas denied the accuracy of key parts of Mr Richards' deposition. Had there been a hearing, the respondent might have chosen to have filed this affidavit earlier in support of its claim that the applicant was unable to represent Mr Richards. The applicant too might have chosen to file additional evidence before the hearing. Having regard to the history of the matter and the terms of the current inquiry as set out in Kanan (see [17] above), this is not the occasion to resolve the issue as to the applicant's capacity to represent Mr Richards. It is not therefore the occasion to determine whose evidence is to be preferred. The question here is whether, on the facts appearing to the applicant union at the time of instituting the proceeding, there was no substantial prospect of success. For present purposes, it may be accepted that the facts as they appeared to the applicant at that time can be taken to be the circumstances as set out in Mr Richards' affidavit (irrespective of whether the Court would have accepted his account had there been a hearing). 31 Having regard to Mr Richards' affidavit, at the time the applicant instituted the proceeding, it could not have been said that there was no substantial prospect of success. In Rescrete Industries Pty Ltd v Jones (1998) 86 IR 269 at 275, O'Connor and Moore JJ observed that the applicant union's eligibility rules "are a pastiche of the eligibility rules of the organisations that have amalgamated to form it". Plainly enough, whether or not the applicant union was entitled to represent the industrial interests of Mr Richards is in the circumstances a somewhat complex legal and factual question. The parties disagreed on critical facts. If, however, Mr Richards' evidence were accepted, then there would appear to be some potential for overlap between the variety of work that he performed and the industries and trades set out in cl 2. Further, although Mr Richards had apparently accepted a role as a foreman on a project in the South East Queensland Division of the respondent, his evidence was that he only worked on the project at Biloela, Queensland, for two days, during which time he performed the same work as labourers, which involved looking for underground services. His evidence, if accepted, would support the proposition that during those two days he had not yet commenced work as a foreman. 32 As already indicated, this is not the occasion to determine whether or not the applicant was entitled to represent Mr Richards and, if not, to fix the consequences of any incapacity. It sufficies that the applicant had an arguable case that Mr Richards fell within cl 2 of its Rules. Even more importantly, when considered on the material apparently available to the applicant at the time the proceeding was instituted, it cannot be said that it ought to have known that its supposed incapacity meant that there was no substantial prospect of success. Further, whether or not Mr Richards fell within the relevant enterprise bargaining agreement cannot fall for determination now. At the time he made his affidavit, Mr Richards evidently believed that he did and, presumably, so did the applicant union. For the reasons already stated, this is not the occasion to determine whether or not this belief was correct.

Whether the applicant's unreasonable act or omission caused the respondent to incur the costs 33 In relation to s 570(2)(b), the observations of the Full Court in Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 are apposite. The Court there said in relation to an equivalent provision in the WR Act: The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criterion are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party. … As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable … Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being "an unreasonable act or omission" for the purposes of s 824(2). … [W]hile courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best. 34 I reject the respondent's contention that the applicant delayed unduly in discontinuing its substantive application after being served with the respondent's interlocutory application. There were a little over ten working days between the filing of the respondent's interlocutory application and the email from the applicant's legal officer advising that she had instructions to discontinue the matter. Doubtless the applicant was considering its position during this time, bearing in mind Mr Richards' affidavit (which it filed on 4 December 2012) and the respondent's stance. This was not, however, an unreasonably lengthy period to take account of these and other considerations bearing on the litigation in hand. More than one consideration may have contributed to the applicant's decision to end the proceeding. The applicant's decision cannot be taken as acknowledging a hopeless case. In the limited time available, it was not incumbent on the applicant to communicate the fact that it was considering its position to the respondent, as the respondent suggested. Indeed, it may be recalled that obvious evidentiary disagreement did not emerge until 19 December 2012, when the respondent filed Mr Thomas' affidavit. This was some seven days after the applicant's legal officer had communicated her instructions to the respondent and the substantive proceeding settled. 35 The applicant's decision was conveyed to the respondent some two business days prior to the scheduled hearing. In so doing, the applicant avoided the costs of an appearance on 17 December 2012. There is nothing to indicate that the applicant acted other than in good faith and in a reasonably timely way. In all the circumstances, the applicant's conduct cannot be described as unreasonable within the meaning of s 570(2)(b) of the FW Act. Accordingly, this limb of the respondent's costs submissions also fails. 36 For the reasons stated, I would reject the respondent's application for costs pursuant to s 570(2) of the FW Act. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.