Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 6) [2008] NSWIRComm 163

Industrial Relations Commission (NSW)|2008-07-01|Before: Sams DP

CITATION: Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 6) [2008] NSWIRComm 163

APPLICANT (respondent on costs) Elka Simjanovska PARTIES: RESPONDENT (applicant on costs) Roads and Traffic Authority of New South Wales

FILE NUMBER(S): IRC 4554 of 2005; IRC 2762 of 2006; IRC 3138 of 2006

Costs application - three substantive applications alleging victimisation under s 210 of the Act - applications dismissed for want of prosecution - costs sought on grounds that the proceedings are 'vexatious' - alleged irregularities in initiating process - meaning of 'vexatious' - reliance on transcript and summonses to produce - summonses to produce set aside - whether proceedings initiated to cause annoyance, trouble or embarrassment for the respondent or for a collateral purpose - reliance on earlier Full Bench decisions - errors in transcript - counter claims that costs application 'frivolous' and 'vexatious' - offer to settle claims - general principles as to costs in the Commission. CATCHWORDS: Held; cost application properly before the Commission - irregularities not sustained - meaning of 'vexatious' - Full Bench decisions do not support applicant's case - applicant's continued demand for documents - documents irrelevant to substantive proceedings - documents sought were to cause annoyance, embarrassment and trouble for respondent - applicant's other activities - costs order significant - identity or impecuniosity of parties not relevant - applicant's allegations against solicitor rejected - applicant's own behaviour considered - applications found to be 'vexatious' - costs order made.

LEGISLATION CITED: Industrial Relations Act 1996, s 181, s 163, s 210 and s 213 Industrial Relations Commission Rules, r 68 - r 74

Attorney General v Wentworth (1988) 14 NSWLR 481 Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors (2006) 154 IR 297 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Crewdson v New South Wales Department of Community Services and Ors (No 16) [2006] NSWIRComm 273 Davies v Kyogle Council (2008) 173 IR 171 Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 5) [2008] NSWIRComm 111 CASES CITED: Elka Simjanovska and Roads and Traffic Authority of New South Wales (2008) 172 IR 420 General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 Oshlack v Richmond River Council (1998) 193 CLR 72 Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149 Simjanovska and Roads and Traffic Authority of New South Wales [2006] NSWIRComm 267 AWARD: Professional Engineers (Roads and Traffic Authority) Enterprise Agreement 2002

APPLICANT (respondent on costs) Ms Elka Simjanovska unrepresented LEGAL REPRESENTATIVES: RESPONDENT (applicant on costs) Mr D Mahendra Sparke Helmore Lawyers

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Elka Simjanovska for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996

DECISION ON COSTS [2008] NSWIRComm 163 1 In a decision published on 10 June 2008, (Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 5) [2008] NSWIRComm 111), the Commission dismissed, for want of prosecution, three applications of alleged victimisation brought by Ms Elka Simjanovska ('the applicant') under Pt 1 Ch 5 of the Industrial Relations Act 1996 ('the Act'). 2 Those proceedings were initiated by the respondent, the Roads and Traffic Authority of New South Wales ('RTA') by way of a notice of motion filed on 11 April 2008. The notice of motion, which was duly served on the applicant, made no reference to an application for costs against her. However, at the hearing of the motion on 21 April 2008, in written and oral submissions, Mr Mahendra, on behalf of the respondent, pressed for costs against the applicant. As the applicant did not attend those proceedings, she was obviously unaware of, and had no notice of the costs application. Plainly, in those circumstances, and in the overall interests of justice, the Commission listed the costs application for further directions on 16 June 2008, at which time the applicant appeared unrepresented. Directions were issued for the filing of further submissions and a hearing on the costs application was set for 1 August 2008. 3 For convenience, I shall continue to refer to Ms Simjanovska as the applicant in the proceedings, although she is obviously the respondent to the costs application.

The Respondent's Case 4 Mr Mahendra submitted that the respondent sought costs against the applicant under s 181 of the Act; the relevant subsections of which I quote hereunder: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or ... (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 5 In his written submissions, Mr Mahendra highlighted the authorities which have considered the terms 'frivolous' and 'vexatious': See General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 and Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149. In particular, he referred to the definition of 'vexatious' in Attorney General v Wentworth (1988) 14 NSWLR 481. 6 Mr Mahendra submitted that the Commission would be satisfied that the applicant had brought her substantive proceedings with the objective of obtaining confidential RTA documents, with the intention of using the documents, in some collateral way, to embarrass, annoy or expose the RTA by making them public. Moreover, not content with having been denied access to the documents by the Commission, she now seeks to gain access to the very same documents in proceedings she has initiated in the Administrative Decisions Tribunal ('ADT'). 7 Mr Mahendra supported his submissions by referring to extracts from the transcript and by reference to the various summonses to produce filed by the applicant in her substantive proceedings. The documents identified by Mr Mahendra fell largely into two categories. Firstly, various documents relating to the ratification of the Professional Engineers (Roads and Traffic Authority) Enterprise Agreement in 2002 ('the 2002 enterprise agreement') and secondly, documents relating to work the applicant had performed on some highly sensitive RTA projects. 8 One of the documents in the later category, were technical drawings for the installation of the RTA's speed cameras. In preliminary proceedings on 6 October 2006, dealing with the applicant's summons to produce, she had said: SIMJANOVSKA: ... I need to see what has been done with these documents and is it still in the form as it was at the time. I need to check this documentation. The affidavit exposes you to quite serious offences if it is not true. So I need to see what has happened to compare it with the knowledge I have.

In further proceedings, concerning a summons to produce draft reports on fixed speed cameras, there was the following exchange between the Commission and the applicant: SIMJANOVSKA: It is in relation to the drawings. The speed cameras were approved for installation without being signed. HIS HONOUR: Ms Simjanovska, that has nothing to do with you. That is a management decision of the RTA. If you don't like it, that has nothing to do with you.

Then in respect to a draft document on 40 km speed limits, the applicant said: APPLICANT: ... I cant' prepare my case any more, whatever they get. I need these documents. I don't understand. I can't prepare my case after all these objections...

Then later in the transcript is this exchange: HIS HONOUR: Everyone of these managers lack credibility, are incompetent, are in some cases as far as your assessment, is corrupt by taking in one case here by requiring fees to be paid for the work performed. These are serious allegations. APPLICANT: To pay for services? HIS HONOUR: Earlier in this document you sought information concerning fees. APPLICANT: It is not the fees. I want to confirm for development of the speed zoning guidelines Ms Rosemary Rouse and Mr Michael De Roos a considerable amount of money was spent. HIS HONOUR: What do you say flows from that. APPLICANT: They produced a document that was completely refused by the practitioners. They did not succeed to complete the speed zoning guidelines for approximately ten years and when I completed the safety zoning guidelines, within a few months of my employment, I was accused of producing a comprehensive document and they requested I not produce a comprehensive document and I quickly update something that Mr Michael De Roos and Rosemary Rouse could not update with payment of all of these fees and within a period of ten years. I want the document to see how much was paid and that they have participated in this. HIS HONOUR: Your are seeking to accuse managers or corruption are you not? APPLICANT: No, this is not corruption, this is the proof. They spent the money on certain projects. HIS HONOUR: You are saying they wasted the money? APPLICANT: The speed zoning guidelines were not completed, this is the fact. HIS HONOUR: You very cleverly answered my questions but you did not answer them directly. APPLICANT: I did answer them directly. 9 Mr Mahendra tendered two summonses to produce issued by the applicant on 25 October 2006 and 21 February 2007, in which she had sought all emails, letters, facsimiles, records of conversations and notes of meetings relating to the negotiations for, and ratification of the 2002 enterprise agreement, the names, job classification, group certificates and pay slips, between 2002 to 2006, of all employees who were invited to vote for the agreement and details of the voting results. 10 Mr Mahendra said that the applicant was denied access to these documents by the Commission. Nevertheless, she continues to seek production of the documents, even though her victimisation proceedings have now been dismissed. In these circumstances, it was open for the Commission to draw an inference that the applicant had commenced the proceedings only to obtain documents with a view to embarrass and / or expose the RTA. The proceedings were commenced for a collateral purpose and not for a legitimate complaint of alleged victimisation. The Applicant's Case 11 Most of the written and oral submissions of the applicant ventured again into issues concerning her substantive claim of alleged victimisation. She also raised complaints of procedural unfairness and other irregularities. The applicant further claimed that she was not given appropriate time to deal with this application and that she was unable to be legally represented because of financial hardship. I will come back to these matters later. Doing the best I can, I will endeavour to glean from her submissions those other matters which are pertinent to this costs application. 12 The applicant submitted that the respondent has a history of making claims for costs against her, on the same basis, which had been rejected in two earlier Full Bench appeals: See Simjanovska and Roads and Traffic Authority of New South Wales [2006] NSWIRComm 267 and Elka Simjanovska and Roads and Traffic Authority of New South Wales (2008) 172 IR 420. 13 She said that in the latter judgement, when the Full Bench refused the respondent's costs application, it had said, 'We are not persuaded the application for leave to appeal and appeal was frivolous or vexatious nor was brought without reasonable cause'. The applicant observed that this appeal concerned the refusal of the Commission to grant access to the very same documents, now relied on by the respondent, in this costs application. She believed that there was no reason why the Commission would adopt a different approach than that adopted by the Full Bench. Indeed, she believed that this application for costs was 'frivolous' and 'vexatious' and 'brought without reasonable cause'. 14 The applicant maintained that the documents she had earlier sought were related to an 'industrial matter' as defined in the Act and were, therefore relevant to her claims of victimisation. She suggested that the respondent's recent actions may have been politically motivated in that it had used confidential information sent by her to the Premier's Office, without the knowledge of his Office. 15 The applicant further claimed that Mr Mahendra had deliberately misled the Commission as to the extent of material filed before the ADT. He had told the Commission there were nine files of material, when there was only two. Further, the respondent had not given proper notice of its requirement for her medical practitioner to be available to be cross-examined before the Full Bench. The RTA had claimed that they hadn't seen her medical evidence, when, in fact, they had. The applicant also denied giving incorrect information to her doctor. 16 In oral submissions, the applicant posed two questions. Firstly, if the documents she had sought were not embarrassing (as conceded by Mr Mahendra), how could she possibly use them to embarrass the respondent? Secondly, she had lost her job, it had been a four year battle; why would she go through all that trauma, just to embarrass the respondent? 17 The applicant submitted that the documents now relied on by Mr Mahendra were only a very small part of her case and the respondent had, in fact, agreed to provide many of the documents she had requested. She believed she had a very strong case which had never been tested; so obviously her case was not unsuccessful. She stated that the respondent had its own history of 'vexatious' behaviour, whereas the Full Bench had confirmed her case was not 'vexatious' or 'frivolous'. She had always tried to conciliate her grievances and had not sought to have the matters escalate. She insisted that there was nothing 'frivolous' in defending her professional reputation. 18 The applicant noted that when the respondent argued against her summonses to produce in 2006 and 2007, it had not been on the grounds of being 'vexatious', but on the grounds of relevance. She had asked for the documents a second time because they related to new matters she had filed in the Commission. She believed it was improper for the respondent to argue, for a third time, that the documents were 'vexatious' when it did not do so in the beginning and when the Full Bench had found they were not 'vexatious' anyway. The respondent was even now intending to argue on the same basis before the ADT. 19 The applicant said that during her employment, when she had complained about irregularities with certain documents, she had been victimised by Management. This was why those documents were important to her case. She had needed to check them against documents she had in her possession. 20 The applicant claimed that there were errors in the transcript and / or the transcript had not accurately reflected her true intentions. She had complained about errors before and the Vice President, Walton J had himself identified errors in an earlier transcript. In any event, she said she just wanted to back up her statement by correctly identifying the relevant document. When she had had an argument with a manager about the correct sign off on the drawings for the installation of speed cameras, she had been victimised. The said manager had a conflict of interest when he had sat on a panel to determine her future employment. The documents were related to 'industrial matters' and therefore not 'vexatious'. She had offered to resolve the dispute internally with her employer, but no one would listen - it was unfair and unjust. 21 The applicant claimed she was further victimised when, after writing a draft document on speed zone guidelines, her managers spent a considerable amount of public money engaging consultants to finalise the document. Even though it was never finalised, she had been put on a performance management plan after being asked to write a report on what was improper about the process. As a result she had suffered trauma and humiliation and was forced to resign. She said that her whole life had been destroyed and the victimisation was ongoing. In fact, the respondent had admitted behaviour which constituted victimisation in the ADT proceedings. 22 Also, during her oral submissions, the applicant claimed that, at no time, had she been made an offer by the respondent to settle her claims. Mr Mahendra interjected and said that this was untrue. The applicant replied that she had meant that no offer had been made 'in writing'.

CONSIDERATION Preliminary Issue - Competency of application 23 At this juncture, I intend to deal with a number of complaints by the applicant as to the competency of this costs application. In her submissions, the applicant claimed that the application for costs had:

a) not been properly initiated under s 181 of the Act;

b) not been properly served on her in accordance with the Commission's Rules; and

c) not been accompanied by an affidavit as required by the Commission's Rules. 24 The applicant submitted that s 181 of the Act requires that a party seeking costs, must make a formal written application to the Commission according to 'established practice and procedure'. It followed that as this costs application was made in a submission, it was therefore not competently before the Commission. In addition, the applicant claimed other irregularities with the process in that the respondent's written submission (provided to her at the directions hearing on 16 June 2008) was unsigned and undated. 25 As I understand the applicant's argument, she bases it on the Commission's Rules dealing with motions, notably Rules 68 to 74. I quote the relevant rules below: PART II - MOTIONS 68 Application Unless a tribunal directs otherwise, an interlocutory or other application in relation to proceedings already commenced must be made by motion. 69 Notice (1) Subject to subrule (2), a person must not move a tribunal for any order unless before moving that person has filed notice of the motion in the appropriate form and has served the notice on each interested party who has an address for service in the proceedings. (2) A person may move a tribunal without previously filing or serving notice of the motion; (a) where the preparation of the notice, or the filing or service (as the case may be) of the notice would cause undue delay or other mischief to the applicant; or (b) where each other party interested consents to the order; or (c) where the tribunal dispenses with the requirements of subrule (1). (3) The notice of motion must : (a) state the date and time when, and the place where, the motion is to be made; and (b) where the tribunal makes an order under Rule 70, bear a note of the order made; and (c) state concisely the nature of the order which is sought; and (d) name each party affected by the order which is sought. (4 ) Costs need not be specifically claimed . (my emphasis) 70 Time for service of notice Where a notice of motion is required to be served, it must, unless the tribunal otherwise orders, be served not less than 3 days before the date fixed for the motion. 71 Service Where a notice of motion is to be served on a person who has not entered an appearance and the time for entering an appearance has not expired, the notice must be served personally. 72 Absence of party A tribunal may hear and dispose of a motion in the absence of any party: (a) where service or notice of the motion on the absent party is not required by these Rules or by an order; or (b) where the notice of motion has been duly served on the absent party. 73 Notice of adjournment Where a notice of motion has been served for any date or the hearing of a motion has been adjourned to any date and, before that date, any party files a request, bearing the consent of each other party to the motion, for an adjournment in accordance with this Rule, the hearing of the motion is to stand adjourned to the date specified in the notice or to such later date as the tribunal may appoint. 74 Further hearing (1) Where a notice of motion for any day has been filed and served, and the motion is not disposed of an that day: (a) the tribunal may hear and dispose of the motion on any later date fixed by the tribunal; and (b) subject to subrule (2), filing or service of a further notice of motion must not be required. (2) Subrule (1)(b) is not to have effect: (a) where the tribunal directs the filing or service of a further notice of motion; or (b) where service is required on a party on whom notice of the motion has not previously been served. 26 It will be readily apparent that the Rules expressly do not require a 'specifically claimed' costs application by virtue of Rule 69(4). Even so, in my opinion, s 181 of the Act neither expressly, nor implicitly, requires a separate application for costs to be made by way of notice of motion and accompanying affidavit. It must be said that the applicant misapprehends the Commission's Rules on motions. It is plain that they do not apply to costs applications. Moreover, contrary to the assertion of the applicant, there is no 'established practice and procedure' as to costs applications in the Commission. I would observe that a costs application is sometimes foreshadowed in correspondence between parties, or in the submissions of a party, so as to put the opposing party on notice that such an application may be pressed in the future, or in order to preserve certain consequential rights. 27 In any event, the fundamental imperative, in all matters in the Commission, is to ensure that natural justice is served by putting an opposing party on proper notice of what is claimed by the other side. That said, the history of these proceedings, in my view, would have left the applicant in little doubt that a costs claim would be made against her if her substantive proceedings failed. Indeed, in these proceedings she referred to the respondent's costs application in her earlier appeal proceedings; to which I will later refer. In addition, I would add that the fact that the applicant had seven weeks to prepare a detailed submission opposing the costs application (and did so), amply demonstrates that any allegation of irregularity, such as to justify a claim of procedural unfairness, could not possibly be sustained in this case. It follows that I would also reject the applicant's submission that she was not provided with adequate time to prepare her case against the application. 28 The applicant further proposed that because the respondent's original submission was unsigned and undated, that these proceedings were improperly commenced. Such a submission cannot be supported. There is nothing in the Act or the Commission's Rules which require written submissions - let alone that submissions must be signed and dated. Written submissions are no more than a preferred means by which a party may, of its own volition, or by direction of the Commission, assist in presenting its case. Another purpose of written submissions is to assist in the Commission's efficient case management. Is it really being alleged that the submissions of the RTA lodged by its solicitor, were submissions from a person or body other than the RTA? For if it is, that is a nonsense proposition. Even putting these observations aside, the Commission is required by s 163 of the Act 'to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms'. In my opinion, the applicant's complaint on the basis of an unsigned and undated submission is nothing more than a trivial technicality. It was an unnecessary diversion from the substantive issues the applicant was required to address in these proceedings. 29 Accordingly, the Commission finds that there was no irregularity in the process of initiating this application and the application is competently before the Commission for determination. General principles and relevant authorities 30 Both parties relied on a number of well known authorities which have identified the tests a court, or tribunal, applies when considering whether particular proceedings are 'frivolous', 'vexatious' or 'instituted without reasonable cause'. These are the specific grounds identified in s 181(2) of the Act, which the Commission, when not sitting as the Court, must consider in any application for costs. Notwithstanding Mr Mahendra's submissions encompassed all the grounds in s 181(2), as I apprehend the argument, the primary ground upon which the respondent relied was that the proceedings initiated by the applicant were 'vexatious'. That being so, I will therefore concentrate on that particular ground and the authorities pertaining thereto. 31 In Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, O'Connor J said: Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.

In General Steel Industries Inc v Commissioner for Railways (NSW) (1964)112 CLR 125 at 129 Barwick CJ held: The test to be applied has been variously expressed: "so obviously untenable that it cannot possibly proceed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; be manifest that to allow them" (the pleadings) "to stand would involve useless expense. 32 Mr Mahendra placed particular emphasis on the wider legal context of the term 'vexatious' referred to by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481: 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. 33 The plain ordinary English meaning of the term is, no doubt, the basis for the legal approach to be taken. The term 'vexatious' is defined in the Macquarie Dictionary as: '(of legal actions): instituted without sufficient grounds and serving only to cause annoyance'. The Shorter Oxford English Dictionary definition is no different: 'of legal actions: instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant'. 34 The crux of the applicant's argument is that her claims of victimisation were not 'vexatious' because two earlier Full Bench decisions said so. It will be necessary for me to attend to this argument before dealing with the specific factors relevant to the instant application. 35 In my opinion, the applicant entirely misconstrues the nature and findings of the two appeal decisions of the Full Bench of the Commission. Let me explain. The first decision in March 2006, upheld the applicant's appeal against a decision of Commissioner Connor in which he dismissed her first substantive victimisation application on jurisdictional grounds. The Full Bench said: 16 This leaves outstanding the question of whether the proceeding purportedly contemplated by the appellant in this way related to "an industrial matter". This again is a matter of some real uncertainty on the appellant's case at first instance and on appeal. What is clear, however, is that there were some elements of the appellant's case at first instance which could have related to an industrial matter and which were said to be connected to the appellant's announcement of proceedings which we have earlier discussed... 36 After considering the assertion by the appellant as to the basis of her alleged victimisation, the Full Bench said: ...Those were all matters properly the subject of evidence and submissions and not proper to be dealt with as a threshold matter resulting in a dismissal of the application on the material before the Commissioner. 37 It will be readily discerned from a proper analysis of the decision, that the Full Bench did not consider - let alone rule on - the evidence which the applicant believed supported her claims of victimisation. In fact, the Full Bench upheld the applicant's appeal for the very opposite reason; namely, that Connor C had prematurely dismissed the substantive application, without hearing the evidence. Moreover, a review of the appeal papers disclose that a wide ranging summons to produce, dated 15 February 2006, had not been acted upon by the respondent because it had been contested on the grounds of relevance and, at that time, had not been ruled upon by the Commission. 38 That the Commission, as presently constituted, ultimately refused the applicant access to the same material sought under two later summons, dated 25 October 2006 and February 2007, does not alter the position. To reiterate - the mere calling for documents under summons does not make the documents relevant to the proceedings. Nor does it mean, even if the documents are produced, that they will be admitted as evidence in the proceedings. This was explained to the applicant a number of times. 39 The applicant also submitted, because the respondent had only argued relevance of the documents, and not that they were 'vexatious', when it objected to the summonsed documents in 2006 and 2007, that it can not say now that the documents are 'vexatious'. This submission is also misconceived. Firstly, it ignores the usual basis on which summonsed documents are objected to; namely, relevance and, in any event, it is not the documents themselves which the respondent seeks to have declared 'vexatious', but the proceedings at large. The documents were cited as the evidence which demonstrated the substantive proceedings were 'vexatious'. 40 As to the applicant's more recent appeal in 2008, the Full Bench refused leave to appeal, dismissed the appeal and also rejected the respondent's application for costs. As to costs, the Full Bench, without giving reasons, said at par [36]: We are not persuaded the application for Leave to Appeal and Appeal was frivolous or vexatious nor was brought without reasonable cause.

41 Again, a proper reading and understanding of the Full Bench decision does not give comfort to the applicant's contention that I should simply adopt what the Full Bench decided. It needs to be understood that the Full Bench was only dealing with an appeal on relatively narrow and discrete issues; namely, my interlocutory rulings on procedural matters and on documents sought under summons. Reference here is necessary to what the Full Bench said at par [28]: 28 We find the rulings and decisions made by Sams DP as to joinder were procedural matters related to case management and the decisions relating to documents to be produced under Summonses for Production were clearly interlocutory decisions which did not dispose of the proceedings. As such, they are procedural in nature.

and at par [33]: 33 Applying the above principles to the appeals before us, we have determined Leave to Appeal should be refused. We wish to emphasise that we have not arrived at this decision without having carefully considered the written submissions filed by Ms Simjanovska which we have taken into account. The decisions of the Deputy President were discretionary in nature, dealing with procedural and interlocutory matters and did not affect the substantive rights of the appellant. We cannot discern any errors of principle or law in the approach adopted by the Deputy President. 42 It is not disputed that those very documents are the same that are relied upon by the respondent in this costs application. However, on a clear reading of the appeal decision, the Full Bench made no findings as to whether the documents sought, should be produced; were relevant to the proceedings; or should be admitted into the evidence. In short, the Full Bench made no findings in the applicant's favour. 43 What can be seen however, is that the Full Bench adopted the usual, and unsurprising practice that interlocutory appeals, are more appropriately dealt with in any subsequent appeal following a substantive decision: See Davies v Kyogle Council (2008) 173 IR 171 and Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union, New South Wales Branch v Alan Thomas David & Ors (2006) 154 IR 297. In that respect, I note that no appeal has been lodged against my substantive decision on 10 June 2008, dismissing all three victimisation proceedings for want of prosecution. In my judgement, it would be open for an objective observer to infer that by not appealing the substantive decision, the applicant's real intention of seeking the contested documents was for some other collateral purpose. 44 The applicant further submitted that the transcript had contained errors and / or she did not really mean what was recorded. On close examination, there is nothing in what the applicant identified which supports any criticism of the transcript. In my view, the small errors she pointed to do not disclose any different intention to what she intended to portray. In one example, she wanted to make the point that she needed to see the documents to check if they accorded with what she had, or with what she knew. This did not reveal any contrary intention to what she has consistently said to the Commission over a long period of time about these documents. Other suggested errors were merely nuances of the language which do not affect the intent. 45 Turning then to the evidence relied on by the respondent, being the summonses to produce and the transcript, I make the following observations. 46 There can be little doubt that from the outset of these proceedings, the applicant has embarked on a comprehensive and relentless exercise to force the respondent to produce documents which she claims are evidence of the victimisation against her. As far back as 25 February 2006, she has sought technical drawings, draft reports on RTA projects, details of numerous correspondence and meetings, any form of exchange between herself and various RTA managers, all details of meetings, negotiations, documents and votes taken on the 2002 enterprise agreement, (and later, even the pay records of all RTA engineers). In my view, this was an unrealistic and ultimately, irrelevant and unnecessary exercise. 47 Notwithstanding that many of the documents sought were already in her possession, the applicant was reminded, on numerous occasions, that the rebuttal presumption in s 210(2) of the Act did not make it necessary for her to produce all this material; at least in the preparation of her evidence in chief. That she has chosen to ignore this advice and continue to press for the documents, is most regrettable. What is even more curious is that the applicant has claimed to have had legal advice at various stages in the proceedings. If this is so, the advice would have been undoubtedly the same; yet she has continued to be distracted from what was necessary to be done in preparation of her case. As has been noted earlier, the applicant's demands for these documents continued through 2005, 2006 and 2007, and resulted in a number of interlocutory rulings made by me. To this day the applicant refuses to accept my rulings and continues to tell me so. 48 There are two categories of documents relied on by Mr Mahendra in this case. Firstly, the documents sought in respect to the 2002 enterprise agreement which include, not only the private and confidential financial details of other RTA employees, but go to a wide ranging and prejudicial range of material relating to the negotiation of the agreement. The demand for this material is little more than a 'fishing expedition'. It remains the case that it is difficult to see how this material could be relevant to her victimisation allegations. Even if the material was not embarrassing to the respondent, its call for production can well be described as causing annoyance to, and harassment of the respondent. 49 The second class of documents are the various draft reports of projects the applicant worked on while employed by the RTA. Putting aside legitimate concerns over confidentiality, it must not be lost sight of that these were draft documents. They had not been completed, let alone authorised for public release. Making draft reports public may, in my opinion, cause real practical difficulties for the RTA and would likely create confusion in the wider community such as to compromise the efficiency and effectiveness of the RTA's decision making. 50 One example of this was that the applicant alleged that one project took 10 years to complete and that the managers wasted taxpayers' money on consultants' fees when, in her opinion, (seemingly unsupported by anyone else), it could have been completed much earlier. As a consequence, she sought details of the fees paid to the consultants. One might reasonably ask, what purpose is served by seeking details of the fees paid to consultants, if not to harass, embarrass and cause annoyance to the respondent? It draws a very long bow indeed, to suggest that these reports were necessary to prove her claims of victimisation. In any event, it would appear that the transcript corroborates the applicant's true motivation and attitude towards her managers. She said, 'I want the document to see how much was paid and that they (the managers) have participated in this'. I believe the applicant wanted the documents in order to allege that her managers either, corruptly or incompetently, wasted public money. It is difficult to characterise this purpose as other than a collateral one, unrelated to her substantive proceedings. 51 Continuing this theme, I note that the applicant's grievances against the RTA extend beyond those managers she has chosen to name. In her long letter of resignation, she said, in part: I consider all Managers, General Managers, Directors and other RTA staff involved in my disputes and the issues I raised are responsible for the consequences and the profoundly negative implications on my life, my professional career and my well being. I also reserve my rights to pursue further with the disputed issues against the RTA and against anyone I consider was involved in improper and unlawful actions. 52 In addition, notwithstanding that her victimisation applications were then on foot in the Commission, the applicant called for a Parliamentary Inquiry or Royal Commission into her circumstances and, more recently, told me that she intends to take her grievances to the United Nations. She has written to the Premier of New South Wales, on three occasions, seeking his assistance in her dispute with the RTA. In one letter, dated 27 August 2007, she said, in part: I currently have three applications for relief from victimization in front of the Industrial Relations Commission of New South Wales (NSW), also an application in front of the Administrative Decision Tribunal (ADT) of NSW. Another two applications to the ADT are currently being prepared, concerning actions by the General Manager Human Resources Strategy, the Manager Workplace Conduct, Manager Injury Management and Claim Services, and Manager Industrial Relations and Policies of the RTA. There are solid legal grounds for many more litigations to be filed. 53 It would be open for a reasonable and objective observer to conclude that the above examples, seen in the context of the long history of these proceedings, demonstrate that the applicant was not content to pursue her claims in the Commission to finality. Rather, she wanted maximum public exposure of the RTA in order to embarrass it in the public domain. In doing so, I am satisfied that the applicant has embarked on a campaign to cause the respondent significant inconvenience, trouble and annoyance. That her activities have involved an enormous waste of time, money and resources of the RTA, will be self evident. Unfortunately, her campaign appears to be no closer to conclusion. I understand that ADT proceedings remain on foot; and as seen above, there are threats of further unspecified action against the RTA and its managers. 54 Putting all of this to one side, I do have some sympathy for the applicant. She is nothing, if not determined and singularly focussed. What a pity these attributes are not directed towards getting on with her life, rather than causing unnecessary and ongoing difficulties for her former employer. 55 The Commission is acutely conscious of the fact that any costs order against the applicant will involve a very significant sum of money; an amount the respondent may never be able to recover. A constant plea of the applicant is that she has no job and has very limited financial resources in comparison to the RTA. However, the impecuniosity of a party, or the relative imbalance of the resources available to an unrepresented litigant vis a vis a large Government employer, is not a consideration as to whether a costs order should be made - subject to it being justified according to the statutory tests. As was said by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at par 92: Nor is the status of the respondent as a public authority presently relevant. The law judges persons by their conduct not their identity. In the exercise of the costs discretion, all persons are entitled to be treated equally and in accordance with traditional principles. The fact that a successful respondent is a public authority should not make a court less inclined to award costs in its favour. Gone are the days when one could sensibly speak of a public authority have "available to them almost unlimited public funds"...

Reference is also made to Crewdson v New South Wales Department of Community Services and Ors (No 16) [2006] NSWIRComm 273 where the Full Bench said at paras [7] to [9]:

7 The application of the principles outlined above to the present circumstances provides a basis for a number of findings which we now make :

(1) there has been no misconduct shown on the part of the respondents either in the lead-up to or in the conduct of the case that should otherwise disentitle them to costs. An examination of the somewhat cursory submissions of the appellant does not suggest otherwise;

(2) the fact that the parties seeking the costs order are Government departments and a Government corporation is not a proper reason for refusing to grant the order: Oshlack v Richmond River Council at [92] to [94]; (3) the usual order as to costs should therefore apply and the appellant should pay the respondents' costs.

8 One further matter which should be mentioned here concerns the appellant's financial circumstances. Various documents which have been filed in the proceedings have indicated that the appellant is currently homeless and has limited financial means. The respondents have contended, in this regard, that the differences in the financial positions of the respective parties is not a matter which is relevant to a consideration by the Court of its discretion to award costs.

9 A similar submission was made in Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 where the respondent government department applied for costs following the refusal by the Full Bench to grant leave to appeal. The respondent relied in support of its application on Oshlack v Richmond River Council at [96] where it was observed that costs orders were not made to punish unsuccessful parties but to indemnify successful parties and, in the absence of any misconduct on the part of the successful party, that party should be entitled to its costs. 56 One further matter requires my comment. The applicant accused Mr Mahendra of misleading the Commission (see par 15). Because this is a serious allegation against a legal practitioner, it is incumbent on me to ensure that the allegation does not go unanswered. In my opinion, the allegation is totally without foundation. To the contrary, the conduct of Mr Mahendra and before him, Ms Janice Nand, has been exemplary. Faced with a very argumentative, unrepresented litigant and despite occasional provocation, their tolerance and professionalism, at all times, is to be commended. Moreover, it is to be contrasted to the applicant's own conduct during these proceedings. For example, during the present proceedings, the applicant claimed that she had not been made any offer by the respondent to settle her claims. When challenged on this claim, she qualified her statement by saying she had received no offer 'in writing'. It was clear the applicant had intended to convey the misleading impression that she had sought to resolve her grievances, but had been rejected on every occasion by the respondent. This was patently untrue, and she knew it to be so. 57 Similar unfortunate conduct was cited by me in two observations I made in Elka Simjanovska and Roads and Traffic Authority of New South Wales (No. 5) [2008] NSWIRComm 111 at paras [49] and [52]: 49 ...That she has been preparing for, and attending proceedings in the ADT at the same time as she says she is too ill to prepare and attend proceedings in this Commission, must give rise to a serious issue as to the applicant's bona fides . It would be open for me to conclude that the applicant simply decides when, and which proceedings she will give priority to, and offers less than frank excuses for failing to comply with directions given by this Commission...

52 Firstly, I think it highly unlikely that the applicant had informed her doctor of the level of activity she has been engaged in during the past year, including detailed correspondence to the respondent and solicitors for the respondent, letters to Ministers and preparation for, and attendance at ADT proceedings. Mr Mahendra identified at least 65 documents prepared by the applicant between 19 April 2007 and 19 February 2008. I do not see how her alleged inability to respond to 2500 pages of material, sits comfortably with her propensity to prepare long and detailed written material, sometimes within hours of receiving it. I query whether the doctor's assessment of her medical condition would have been different had he been made aware of this activity...

See also transcript reference at par 8 of this decision. 58 For the reasons herein expressed, I am satisfied that the respondent's application for costs should be granted. I find the applications in Matters IRC 4554 of 2005, IRC 2762 and IRC 3138 of 2006 to be 'vexatious' within the meaning of s 181(2)(a) of the Act. Costs will only be applicable to the proceedings which have been before the Commission as presently constituted; that is, the proceedings commencing from 9 August 2006.

ORDERS 59 Pursuant to s 181 of the Industrial Relations Act 1996, the Industrial Relations Commission orders that the applicant, Ms Elka Simjanovska, shall pay the respondent's costs of, or incidental to the proceedings in Matters IRC 4554 of 2005, IRC 2762 and IRC 3138 of 2006. Costs shall be as agreed, or assessed, from 9 August 2006.

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.

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