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[2020] FWC 2003
procedural. RISSB’s costs application was dismissed. The Commission also declined to make costs orders sought by Hynes and IRIQ in submissions, noting that no application had been filed and, in any event, the...
RISSB asked the Fair Work Commission to make Hynes and her lawyers pay its costs after she withdrew her general protections application. The Commission refused. It considered that an initial Form F8C does not need to contain every legal argument and item of evidence. The application appeared arguable, factual matters were disputed, and the Commission was not persuaded that Hynes had brought a hopeless or improper case, or that her lawyers had acted unreasonably. The decision did not decide whether Hynes’s underlying allegations were true.
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Jacinta Hynes brought a general protections application against her employer, the Rail Industry Safety and Standards Board (RISSB). Her Form F8C, filed on 2 August 2019, alleged adverse action contrary to ss 340 and 351 of the Fair Work Act 2009. The form identified “sex” as the attribute for the s 351 allegation ([2], [4]). IRIQ Law acted for Hynes. On the same date, IRIQ also filed a complaint for her with the Queensland Human Rights Commission (QHRC) ([5]).
The filing followed a workplace meeting on 30 July 2019. Hynes was told that allegations had been made against her and RISSB intended to investigate them ([22]). Correspondence between the parties’ lawyers on 2 August included disagreement about the time allowed for a response and whether proceedings would be commenced before RISSB’s lawyers had responded ([24]–[26]). The decision records that correspondence and later settlement communications, but does not reproduce all of them ([27]).
RISSB filed its response on 4 September. A Fair Work Commission conciliation conference took place on 5 September but did not resolve the dispute. Hynes wholly discontinued the Commission application on 11 September ([6]–[8]). RISSB then applied for costs under ss 376 and 611. Its costs schedule contained 184 items and claimed $35,841.30 ([9]).
RISSB argued that the application was deficient, had no reasonable prospects, was brought without reasonable cause or vexatiously, and was intended to delay or interfere with RISSB’s investigation. It also argued that the Commission and QHRC claims overlapped ([32]–[35], [46]–[49]). Hynes and IRIQ disputed those propositions. They said the application described the relevant facts, that there was evidence supporting the allegations, and that the sex-discrimination reference in the Form F8C was included by mistake ([38]–[45]).
Deputy President Lake dismissed the costs application. The Commission did not decide whether the underlying discrimination or adverse-action allegations were true. It decided only whether the statutory requirements for costs had been established ([55], [60], [62]).
The decision addressed three principal statutory routes. Section 611 allowed costs where the Commission was satisfied that an application was vexatious or without reasonable cause, or where it should have been reasonably apparent that there was no reasonable prospect of success. Section 376 concerned costs against a representative in specified circumstances, including encouraging a dispute that should have been understood to have no reasonable prospect of success, or causing costs through an unreasonable act or omission. Section 375B was also among the provisions relied upon by RISSB. The decision set out these provisions and recorded that the costs application was made within the 14-day period in s 377 ([30]–[31]).
A central issue was the level of detail required in a Form F8C. RISSB criticised the application for not identifying the alleged workplace rights, adverse action and relevant connection in sufficient detail, and for including a sex-discrimination ground that IRIQ later said was mistaken ([33], [46]–[48]). The Commission did not treat the form as if it had to perform the function of detailed court pleadings. It said there was no requirement for a Form F8C to set out an applicant’s full arguments or attach witness statements and documentary evidence ([52]).
The reason was functional. The Commission described the form’s purpose as enabling voluntary conciliation in a process intended to be quick, efficient and cost-effective. Requiring full submissions and evidence at filing would, in its view, undermine that purpose and impose unnecessary expense on applicants and respondents ([53]). The decision therefore rejects, for this costs assessment, the proposition that incomplete legal argument or absent supporting evidence in the initial form by itself establishes a costs ground.
The Commission also considered the substance of the asserted application. It found that Hynes’s s 372 application concerned alleged discrimination after she raised the concern that she was being underpaid because of her sex. It distinguished that subject matter and those allegations from the QHRC complaint ([55]). It expressly made no finding about whether the allegations could ultimately be proved ([55]). The Commission nevertheless considered there was an arguable case involving contested factual matters, which meant the s 611(2)(a) basis had not been demonstrated ([56]).
For s 611(2)(b), the Commission noted that Hynes had obtained legal advice before filing and appeared to have evidence that she believed supported the claims. It also emphasised that disputed facts would need to be tested before the merits could be resolved. On that material, it was not satisfied that the application had no reasonable prospect of success or that this should have been apparent to Hynes ([57]).
The analysis of IRIQ was similarly tied to the statutory grounds. The Commission found that IRIQ advised Hynes, took instructions, prepared and filed the applications, and discontinued the Commission matter promptly when instructed ([58]). Although the Commission considered that IRIQ perhaps should have clarified the sex-discrimination reference, it accepted that its inclusion was a genuine error. It also noted that RISSB had not contacted IRIQ or Hynes to clarify whether sex discrimination was an argued ground, and that particular grounds are commonly withdrawn during conciliation ([59]). It was not satisfied that IRIQ encouraged a hopeless dispute or acted unreasonably within s 376 ([58]–[59]).
The Commission had separately addressed the parties’ dispute about “without prejudice” correspondence. It considered the correspondence in light of s 591, which meant it was not strictly bound by the rules of evidence and procedure, but said it gave the material due weight while noting the objections ([13]–[20]). The ultimate reasons for dismissal, however, rested on the Commission’s findings about the costs thresholds and the nature of the application, rather than an express ruling that the correspondence was decisive.
The decision applies the statutory costs provisions as they stood in the Fair Work Act 2009 and interprets the role of the Form F8C in the Commission’s general protections process. It does not purport to change the statutory tests. Instead, it explains how those tests were applied to this application and why the alleged defects in the form did not establish a costs entitlement on the facts before the Commission ([30], [52]–[60]).
Before this decision, the legislation already provided that a person generally bears their own costs in a matter before the Commission, subject to specified exceptions under s 611. It also provided a separate costs mechanism for lawyers and paid agents under s 376, and required an application for costs relating to a s 372 dispute to be made within the period specified in s 377 ([30]–[31]). The decision does not alter those provisions.
The practical clarification is about the relationship between an initiating form and the later conciliation process. The Commission treated the Form F8C as the starting point for a voluntary dispute-resolution process, not as a requirement to file full evidence and developed submissions at the outset ([52]–[53]). It also recognised that grounds identified on the form may later be withdrawn or may have been included incorrectly ([54], [59]). That does not mean that any form, however unclear, must be accepted as adequate for every purpose. The judgment addresses whether the deficiencies relied on by RISSB justified a costs order in this particular case.
The decision is also not a determination that Hynes had a valid underlying claim. The Commission’s finding was limited: the claim appeared arguable and involved contested factual issues, and the statutory costs thresholds were not established. It expressly made no finding on whether the allegations could be made out ([55]–[57]).
At [52], the Commission said there was no requirement for a Form F8C to set out the applicant’s arguments in full or attach supporting evidence such as witness statements or documents. In plain English, the initial form does not have to contain the complete evidentiary case.
At [53], the Commission explained that the form exists to facilitate voluntary conciliation in a quick, efficient and cost-effective way. It reasoned that requiring detailed submissions and evidence from the outset could create unnecessary expense for both parties. This explains why the Commission did not assess the form as though it were a fully developed court pleading.
At [54], it said it was not unusual for a Form F8C to identify more than one statutory section, or for some identified grounds to be incorrect or not pursued later. The point is contextual: an inaccurate or abandoned ground does not automatically establish that the whole application was brought improperly.
At [55], the Commission identified the subject matter it understood the s 372 application to concern: alleged discrimination after Hynes raised a concern about perceived sex-based underpayment. It immediately qualified that description by stating that it made no finding about whether the allegations could be proved. The finding was relevant to distinguishing the Commission application from the QHRC complaint, not to deciding the merits.
At [56], the Commission said there appeared to be an arguable case with contested factual issues. In everyday terms, the material did not persuade it that the application was so baseless or improper that the s 611(2)(a) costs ground was established.
At [57], the Commission referred to Hynes’s legal advice, her belief that she had supporting evidence, and factual disputes that would need to be tested. It concluded that it was not satisfied the application had no reasonable prospect of success, or that this should have been apparent to her. This was a threshold assessment for costs, not a prediction about the result of a hearing on the underlying claims.
At [59], the Commission dealt with the mistaken sex-discrimination reference. It considered that clarification might have been preferable, but accepted the evidence that the reference was a genuine error. It also noted that the respondent had not sought clarification and that grounds can be withdrawn at conciliation. The passage illustrates why the error did not, on this record, amount to an unreasonable act or omission for the costs application.
The decision is most directly relevant to a costs application following a general protections matter that has been discontinued after an unsuccessful conciliation. Its reasoning is particularly pertinent where the costs applicant relies on the initial Form F8C being incomplete, insufficiently particularised, or containing a ground later said to be mistaken or not pursued ([32]–[33], [40], [46]–[49], [52]–[59]).
It may also be relevant where the underlying allegations involve disputed workplace facts and the respondent argues that the applicant had no reasonable prospect of success. The Commission’s assessment considered whether the case was arguable, whether facts were contested, whether the applicant had obtained legal advice, and whether evidence was believed to support the allegations ([56]–[57]). Those are features of the reasoning in this decision, not a universal checklist that determines every costs application.
For costs sought against a representative, the decision is relevant where the allegation is that the lawyer encouraged a hopeless application or caused costs through unreasonable conduct. Here, the Commission examined the representative’s involvement, instructions, filing conduct and response to the client’s instruction to discontinue ([58]–[59]).
The decision is less useful as authority on whether a particular discrimination or general protections claim will succeed. The Commission expressly did not decide that question ([55]). Nor does it establish that all errors in an application form are harmless. Its conclusion depended on the evidence and circumstances before it, including the Commission’s understanding of the claim and the fact that RISSB had not sought clarification about the disputed ground ([55], [59]).
The supplied judgment contains no discussion of later decisions treating or applying Hynes. It was issued on 17 April 2020, and the material provided does not include subsequent case law. It is therefore not possible to state from this source whether later courts or Commission members followed, distinguished, approved or criticised its reasoning.
The judgment itself cites Raury Adams v J A Fillmore and Co [2016] FWC 3681 as relevant ([50]). Deputy President Lake reproduced passages from that earlier decision addressing whether an application was vexatious, without reasonable cause or brought for a collateral purpose ([51]). The present decision then undertook its own assessment under the relevant statutory provisions. The text does not say that Adams was adopted as a binding rule; it identifies the case as relevant and records its reasoning.
The judgment also records authorities mentioned in the parties’ submissions, including Walker v Mittagong Sands Pty Ltd (t/as Cowra Quartz) and Ross-Davis and Anor v JD Pty Ltd T/A Daniel Lightfoot Studios ([34], [45]). Those references appear as submissions by the parties, not as authorities relied on in Deputy President Lake’s stated reasons. On the supplied text, they should not be treated as decisions applied by the Commission in reaching its outcome.
The decision does not specify a minimum level of factual detail that every Form F8C must contain. It establishes that full submissions and supporting evidence are not required, and explains the form’s conciliation function, but it does not define how much information is enough in a different case ([52]–[53]).
It also does not resolve when an inaccurate statutory ground, or a failure to correct one, could amount to unreasonable conduct or contribute to a costs order. The Commission regarded the sex-discrimination reference here as a genuine error and noted that RISSB had not sought clarification. Different evidence about the origin, significance or handling of an error could raise a different question, but this judgment does not decide that hypothetical issue ([59]).
The decision does not determine what degree or kind of evidence is sufficient to make a general protections claim “arguable” for the purpose of resisting costs. It records that Hynes appeared to have evidence she believed supported her claims and that disputed facts required testing, but it does not assess that evidence in detail or make findings on the underlying allegations ([57]).
Finally, the judgment does not establish that discontinuing after conciliation will generally defeat a costs application. It considered the circumstances and statutory grounds in this case, including the fact that Hynes instructed IRIQ to withdraw the application when legal costs mounted ([45], [58]). Whether discontinuance is relevant in another matter would depend on the statutory basis and the evidence about the application’s initiation and conduct.
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s.372 - General protections
Application for costs order - s.372 conciliation conference - voluntary participation in telephone conference - application for costs made under s.376 and s.611- separate application with Queensland Human Rights Commission - whether application had 'no reasonable prospects of success' - whether application was 'vexatious' or 'without reasonable cause' - application for costs dismissed.
[1] This decision arises from a General Protections application made under s. 372 of the Fair Work Act 2009 (the Act).
[2] Ms Jacinta Hynes (the Applicant) was represented by IRIQ Law (IRIQ). IRIQ filed a Form F8C - General protections application not involving dismissal on Ms Hynes' behalf on 2 August 2019 alleging that Ms Hynes had been subjected to adverse action in contravention of s. 340 of the Act and also under s. 351 of the Act on the basis of the Applicant's sex. The application named the Rail Industry Safety and Standards Board (RISSB) as the Respondent to the matter. The Form F8C was a standard Commission form and was nine pages long.
[3] Question 3.2 of the Form F8C asks an Applicant:
"Which section(s) of the Fair Work Act 2009 does the Applicant allege the Respondent contravened when they took (or threatened or organised) the above actions against the Applicant?"
[4] The Form F8C contains a number of checkboxes below this question. On Ms Hynes' application, two boxes are ticked - s. 340 Protection, and s. 351 Discrimination. The box for s. 351 Discrimination contains a further field which asks an Applicant to specify the attribute as set out in section s. 351(1), followed by a small box in which a protected attribute should be entered. On Ms Hynes' form, the word 'sex' is written.
[5] Relevantly for reasons that will be dealt with further below, IRIQ also filed a complaint in the Queensland Human Rights Commission (QHRC) on 2 August 2019.
[6] On 4 September 2019, Logie-Smith Lanyon Lawyers (LSL) filed a Form F8A - Response to general protections application on behalf of RISSB. The response was provided on the standard Commission form and was nine pages long.
[7] The matter was listed for a conciliation conference in accordance with s. 374 of the Act on 5 September 2019. The conciliation conference was not successful in resolving the dispute.
[8] On 11 September 2019, the Applicant filed a Form F50 - Notice of discontinuance, wholly discontinuing the matter.
[9] On 25 September 2019, LSL lodged a Form F6 - Application for costs made under s. 376 and s. 611 of the Act on behalf of RISSB, naming Ms Hynes and IRIQ as the first and second Costs Respondents respectively. Annexed to the Form F6 was a costs schedule detailing 184 item numbers with dates from 2 August 2019 to 11 September 2019. The costs schedule claimed an amount of $35,841.30 in total.
[13] Before dealing with the substantive issues in the matter, it is necessary to deal with a preliminary issue involving various without prejudice correspondence between the parties.
[14] With their initial submissions in relation to costs, RISSB included a witness statement from Ms Deborah Smith which included five exhibits numbered DS-1 to DS-5. Four exhibits, DS-1, DS-2, DS-4, and DS-5, were correspondence between the parties marked as 'without prejudice save as to costs'.
[15] IRIQ objected to this correspondence being accepted as evidence. IRIQ submitted that the correspondence referred to by RISSB was without prejudice correspondence and could not be raised or relied upon as evidence without the consent of both parties. IRIQ submitted that in particular, two letters between the parties on 2 August 2019 were before proceedings were ever filed and had no probative value to the costs application.[1]
[16] At the hearing, IRIQ further submitted that the correspondence marked 'without prejudice save for costs' was irrelevant and should be struck out. IRIQ relied on s.131(1) and s. 131(2)(h) of the Evidence Act 1995 (Cth).
[17] RISSB submitted that the heading of 'without prejudice save as to costs' indicates a clear, express contemplation and intention by the relevant writer/sender of each of those pieces of correspondence that the correspondence could properly be raised in any application or dispute regarding costs.[2]
[18] RISSB further submitted that on 7 October 2019, a letter was sent to the Ms Hynes and IRIQ on behalf of RISSB which stated as follows:
"...various of the communications passing between the parties in this matter are marked "Without Prejudice Save As to Costs"
Please note [RISSB] reserves its rights to produce certain communications marked as such in the course of the costs application."
[19] RISSB submitted that Ms Hynes and IRIQ had 'ample opportunity' to raise an objection to this and did not do so.
[20] Section 591 of the Act provides that as a tribunal, the Commission is not strictly bound by the rules of evidence and procedure and has powers to inform itself on certain matters as it sees fit. I find it appropriate to consider the 'without prejudice' correspondence given the circumstances of the matter and the context of the correspondence but have given it due weight, noting the objections raised.
[21] As briefly outlined above, this costs application concerns a s. 372 application lodged by Ms Jessica Hynes. The s. 372 application is one of a number of legal proceedings brought by Ms Hynes against RISSB.
[22] On 30 July 2019, a meeting was held between Ms Hynes, Ms Deborah Smith, and Mr David George (another director of RISSB). During the meeting, Ms Hynes was advised that there were allegations against her and that RISSB intended to conduct an investigation into those allegations.
[23] That same day and after the meeting, RISSB received an emailed letter from IRIQ on behalf of Ms Hynes. This letter was not provided to the Commission.
[24] On 2 August 2019 at around 12:25pm, a second letter was sent by IRIQ to RISSB. This again was not provided to the Commission. In reply, Ms Rima Newman of LSL wrote to IRIQ. The letter read:
Our client: Rail Industry and Safety Standards Board
We refer to your letter of today, addressed to the Rail Industry and Safety Standards Board (RISSB), a copy of which has been provided to us. We act for RISSB.
We are considering the matters raised in your letter of earlier today and your letter of 30 July 2019. We are in the process of obtaining our client's instructions and will respond by close of business on Monday, 5 August 2019. Your request for a response by midday today is unreasonable.
We assume that the reference in your letter to a text message received by your client from our client of "today at 4:09pm" is in fact a reference to a text message sent by our client to your client yesterday.
If any action is commenced against our client in the interim, we will produce this letter to the relevant court/tribunal on the question of costs. Our client will vigorously defend any proceedings your client may issue against it.
Please ensure any correspondence regarding this matter is sent to this office and not directly to our client.
[25] That same day at around 4:23pm, IRIQ wrote to LSL who were by that stage representing RISSB. The letter is set out below:
As you are aware we act for Jacinta Hynes. We are in receipt of your correspondence of instant date.
We reject your assertions that our request on Tuesday of this week for a response by midday today is unreasonable. Additionally, my instructions are that in relation to the matters of alleged discrimination, these matters have been made known to the Board since 2017.
In relation to the text message you are no doubt aware of when it was sent.
I hold instructions to instigate proceedings as to both claims this afternoon and I intend to do so. We have already put you on notice as to costs in relation to our deadline.
I find it trite that you have asked us to ensure correspondence is directed to you when indeed your client specifically ignored the same request from us on two occasions.
You are welcome to send a response to us on Monday and I will seek instructions from my client at that time if she is willing to consider it or if she would prefer to have the matters dealt with in the appropriate jurisdictions.
All of our client's rights remain expressly reserved.
[26] At 5:55pm, IRIQ sent LSL an email advising that initiating documents had been filed in the Commission and the QHRC respectively and included copies of both applications.
[27] From August until 11 September 2019, the parties communicated via several letters. These letters contained communications between parties concerning the disputes and settlement offers from both parties. I do not consider it necessary to set out in this decision the entirety of the correspondence but note that all correspondence was considered.
[28] As noted above, the matter was listed for a conciliation conference on 5 September 2019 which was not successful in resolving the dispute. On 11 September 2019, the Applicant filed a Form F50 - Notice of Discontinuance, wholly discontinuing the matter. RISSB then lodged a costs application on 25 September 2019.
[29] On 21 January 2020, Ms Hynes resigned from her employment with RISSB effective 21 January 2020.
[30] The provisions of the Act relied upon by RISSB in respect of its cost application are set out below together with s. 377 of the Act that sets out the timeframe within which a costs application in relation to a general protections application made under either s. 365 or s. 372 of the Act:
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC's power to order costs under section 611.
376 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and
(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and
(c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.
(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.
(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.
(4) This section does not limit the FWC's power to order costs under section 611.
An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.
(1) A person must bear the person's own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
[31] RISSB's costs application was made within 14 days of the Commission having finished dealing with Ms Hynes' general protections application. Accordingly, s.377 is satisfied.
[32] In relation to ss.611(2)(a) and (b) of the Act, RISSB submitted the following:
(a) The Costs Applicant submits that the Proceeding was instituted by the First Costs Respondent:
(i) "vexatiously" and/or "without reasonable cause"; and/or
(ii) in circumstances in which it should have been reasonably apparent to the First Costs Respondent that the Proceeding "had no reasonable prospects of success".
(b) In these respects, the Costs Applicant respectfully submits:
(iii) The predominant purpose of instituting the Proceeding was to:
(A) gain a collateral advantage", namely, to delay, discourage or prevent the Costs Applicant from conducting the Investigation; and/or
(B) harass, annoy or embarrass the Costs Applicant. This is evident from the First Costs Respondent's conduct, which included:
filing the Application prematurely, notwithstanding that the Costs Applicant's lawyers had informed the First Costs Respondent (via her lawyer) that they would respond to the matters raised on the next business day;
filing two other separate proceedings in the Queensland Human Rights Commission (QHRC) (that is, three proceedings in total) dealing with overlapping subject matter17; and
• discontinuing the matter following the telephone conciliation."[3]
[33] RISSB further submitted that in the application, Ms Hynes did not specify the relevant alleged workplace rights which she alleged were the reason for the adverse action allegedly taken against her; the relevant (alleged) adverse action; the relevant (alleged) nexus between any alleged workplace right and any alleged adverse action; and details of the alleged "sex discrimination" beyond simply inserting the word "sex" in the relevant field on the Form F8C application form.[4]
[34] RISSB said that they were put to considerable expense to meet a case that was without substance, citing Walker v Mittagong Sands Pty Ltd (t/as Cowra Quartz) [2011] FWA 2225.
[35] RISSB submitted that the applications to the Commission and QHRC were not fundamentally unique and overlapped. The overlapping allegations related to Ms Hynes' salary, and a comment about Ms Hynes' dress.
[36] While Ms Hynes and IRIQ were named individually as cost respondents, the submissions in this matter were made by IRIQ on Ms Hynes' behalf and put forward the case for both Respondents.
[37] At the hearing, IRIQ submitted that there were two separate acts that resulted in different adverse action taken towards Ms Hynes: firstly, that Ms Hynes was paid at a different level to other male colleagues; and that after raising this issue, Ms Hynes was bullied, isolated and undermined.
[38] IRIQ submitted that the Form F8C does not request nor require that each workplace right, adverse action, or discriminatory act be specifically detailed. IRIQ submitted that Q3.1 of the Form F8 asks applicants to "describe the actions of the Respondent that have led to the Applicant to make this application" and that the purpose of the section is to "describe the relevant facts and circumstances."[5] IRIQ submitted that the application form submitted provided the relevant details, including dates, events and involved parties, as well as the acts that they alleged constituted the adverse action.
[39] IRIQ further submitted that RISSB's Form F8A response involved pulling specific statements out of context in an attempt to portray the application as vague or without substance, but despite this allegation, RISSB responded at length and in detail to the Form F8.
[40] IRIQ submitted that the 'sex' discrimination reference at Q3.2 of the Form F8 remained on the application by way of mistake and was not meant to form part of the claim, as was evident in that sex discrimination is not mentioned or argued in the application itself, and the matter of discrimination was only pursued in the QHRC. IRIQ submitted that RISSB was not prejudiced by this error because the general protections claim clearly set out the issues that have been described in these submissions, separate to the claims in the QHRC.
[41] IRIQ argued that the matter was substantial and was supported by documentary evidence. IRIQ provided a cover letter which was partially redacted that referred to copies of emails, policies, employment contracts, and position descriptions. IRIQ submitted that the material provided in support of the allegations of bullying and harassment were covered by Legal Professional Privilege and did not provide the documents in full.
[46] By way of reply, RISSB maintained that the general protections application had no merit and the initiating application was deficient in a number of respects. RISSB submitted that IRIQ's submissions specifically conceded this in stating that there is no requirement to specify the relevant adverse action/workplace rights on the initiating application, and that that the "sex discrimination" reference on the application remained on the application by way of mistake and was not meant to be part of the claim.
[47] Ms Newman, as representative for RISSB, submitted at the hearing that at no stage prior to the costs application did Ms Hynes or IRIQ concede that the sex discrimination component of the Fair Work Commission complaint was incorrect or that it was a mistake or that RISSB did not have to worry about it.
[48] RISSB submitted that it had difficulty responding to the initiating application due to the lack of clarity in relation to the alleged basis for the application, and incurred costs unnecessarily in doing so; the application could not have succeeded, given the deficiencies contained in it, including the fact that no adverse action/workplace rights were specified; and the content of the initiating application was particularly unreasonable, given Ms Hynes was at all times legally represented by IRIQ which is a firm of qualified legal practitioners.
[49] RISSB submitted that the general protection application and QHRC claim contained overlapping material and factual claims. RISSB further submitted that the submissions and material filed by IRIQ does not support or provide any basis for the general protections application, and that in respect of the claims of bullying and harassment (which are denied), these claims do not provide or demonstrate any claimed nexus between any alleged workplace right or other protected attribute of Ms Hynes and any alleged adverse action and are irrelevant to the question of whether the application had merit.
[50] The case of Raury Adams v J A Fillmore and Co [2016] FWC 3681 (Adams) is relevant in relation to this matter. Adams concerned a self-represented applicant bringing a general protections application. The applicant discontinued this application after a conciliation conference and said in the email discontinuing his application that he intended to bring a claim in another jurisdiction. The respondent brought a costs application.
[51] Relevantly, Lee C concluded (emphasis added):
"[34] I will deal firstly with whether the application was made vexatiously or without reasonable cause. It is clear from the materials that there was a dispute over the rights of the Applicant to take personal and carers leave; an investigation process followed leading to allegations being made about the Applicants conduct. The Applicant was stood down and ultimately resigned. The Applicant sought to amend his application during the conference to say he was constructively dismissed. The Applicant claims that he was not correctly paid his entitlements. There are a large number of factual matters in dispute. The Applicant sought a remedy of "Adverse Action Orders". The Respondent made much of the fact that the Applicant sought this as a remedy and I agree it is not clear what is meant by it. However, considering the application in total, there is nothing to suggest an intention to annoy or embarrass the Respondent. Nor is there anything to suggest that the application was untenable or manifestly groundless. There is nothing to indicate that the motive for the Applicant in lodging his application was other than for the reasons stated in his application. The Applicant advised that he would not be continuing his application after the Respondent provided the agreed reconciliation documents indicating he would pursue the matter in other jurisdictions. As His Honour noted in Holmesby a withdrawal of an application can be the outcome of a successful conciliation.
[35] Considering whether the application was brought for a collateral purpose, it is clear that a claim for correct payment of entitlements formed part of the application. The Respondent asserts that it appears that the application was made to seek a review of his entitlements. However, it is clear there is more to the application made than just this factor, including the disputed carers leave and associated claims of harassment, coercion and bullying. I am not satisfied that the application was brought for a collateral purpose. Overall, I am not satisfied that the Applicant's case was one initiated "vexatiously or without reasonable cause" within the meaning of s.611(2)(a) of the Act. Therefore, the criteria for an application for costs under s.611(2)(a) has not been demonstrated."
[52] There is no requirement for a Form F8C - General protections application not involving dismissal to outline in full an applicant's arguments or provide supporting material such as witness statements or documentary evidence. Indeed, it is frequently the case that self-represented parties lodge applications in the Commission that are variously incomplete, incorrect, not paid for, or out of time.
[53] While I acknowledge RIBSS's objection that Ms Hynes was represented and ought to have clearly articulated her arguments in her Form F8C, I do not accept that this is a requirement of the filing of a Form F8C. The purpose of the Form F8C is to facilitate a voluntary conciliation to attempt to resolve a dispute between parties involving the general protections in a manner that is quick, efficient, and cost-effective for parties. To require an Applicant to provide substantive submissions and evidence on each point of their application would go against this purpose and result in needless expense which would also be borne by respondents who, upon choosing to participate in the voluntary conciliation process, would be required to provide a response in a similar fashion.
[54] I am also not satisfied that the application was lodged for a collateral purpose. While the application to the Commission was made under both s. 340 and s. 351 protections, it is not unusual for a number of sections to be identified on a Form F8C and it is certainly not unusual for a number of these sections to be incorrectly identified or ultimately not pursued at a later time.
[55] I am satisfied that the s. 372 application was brought specifically to deal with the alleged discrimination suffered after Ms Hynes identified and raised with her employer, she felt she was being underpaid on the basis of her sex. I make no finding as to whether these allegations can be made out, but it is clear that the s. 372 application deals with different subject matter and different allegations than the QHRC complaint.
[56] I am not satisfied that the Applicant's case was one initiated "vexatiously or without reasonable cause" within the meaning of s. 611(2)(a) of the Act. There appears to be an arguable case where there are contested issues of fact between parties. Therefore, the criteria for an application for costs under s. 611(2)(a) has not been demonstrated.
[60] For all the above reasons, I have determined that it is not appropriate to make the costs orders sought by RIBSS as I am not satisfied that the requirements in ss.375B, 611 and 376 of the Act have been made out by the RIBSS.
[61] I note that IRIQ on behalf of Ms Hynes in their submissions and at the hearing raised that they were seeking similar costs orders as RISSB. No application in this regard was filed with the Commission. Despite this, I am not satisfied that the requirements in ss. 375B, 611 and 376 of the Act have been made out by Ms Hynes and am not minded to make the costs orders sought by Ms Hynes and IRIQ.
[62]
[1] Costs Respondent's Outline of Submissions dated 19 February 2020, page 1.
[2] Costs Applicant's Outline of Submissions in Reply dated 26 February 2020 at para 3.2.
[3] Costs Applicant's Outline of Submissions dated 5 February 2020 at para 3.1(a)-(b).
[5] Cost Respondent's Outline of Submissions dated 19 February 2020, page 5 at para 19.
[6] Witness statement of Luke Gilliland dated 19 February 2020, Annexure LG-2.
[7] Cost Respondent's Outline of Submissions dated 19 February 2020, page 2 at para 9.
Printed by authority of the Commonwealth Government Printer
Jacinta Hynes
Rail Industry Safety And Standards Board [2020] FWC 2003
RISSB’s costs application was dismissed. The Commission also declined to make costs orders sought by Hynes and IRIQ in submissions, noting that no application had been filed and, in any event, the statutory requirements were not made out ([60]–[62]).
[10] IRIQ, on behalf of Ms Hynes, provided submissions in response to the costs application on 13 December 2019. I listed the matter for Mention and Directions on 28 January 2020 and issued Directions allowing further submissions from the parties.
[11] RISSB filed submissions in support of the costs application on 5 February 2020, including a witness statement from Ms Deborah Spring, Chief Executive Officer and Executive Chair of RISSB. IRIQ filed submissions in response on 19 February 2020, including a witness statement from Mr Luke Gilliland, a lawyer at IRIQ. RISSB filed further submissions in reply on 26 February 2020 which included a witness statement from Ms Rima Newman, a partner at Logie-Smith Lanyon Lawyers.
[12] The matter of costs was heard on 4 March 2020 with parties appearing by telephone.
[42] In relation to RISSB's submission that it should have been reasonably apparent to IRIQ that the application had no reasonable prospects of success, IRIQ submitted:
(a) the series of events and facts listed in the Form F8C application provide clear grounds for a general protections claim;
(b) applications to the Fair Work Commission are designed to be submitted by self-represented individuals first and foremost, and as such are held to a different standard even when leave to appear is granted;
(c) the Costs Applicant has held a Fair Work Commission application to the same standard as a Court statement of claim, which is a misapprehension and incongruent with the Commission's purpose;
(d) a Form F8C application requires that a party provide a clear depiction of relevant facts and circumstances, which are then addressed in a response before a conference or conciliation is held, and the Costs Respondents have done so; and
(e) Despite this, the legal grounds of the claim are clearly articulated, and the nature of the facts speak for themselves."[8]
[43] IRIQ submitted that there is no evidence that they encouraged Ms Hynes to start or continue proceedings, and that there was no evidence that there was any unreasonable act or omission by IRIQ in relation to the proceedings, and further submitted that the "without prejudice" correspondence could not be raised in support of the costs application.
[44] IRIQ submitted that while the s. 372 general protections application and the QHRC claim share a number of common facts, this is only due to the events occurring within the same workplace. IRIQ argued that both claims are entirely separate and do not contain overlapping matter.
[45] IRIQ submitted that there is no requirement under the Act to provide an explanation for a discontinuance in the Fair Work Commission. Nonetheless, IRIQ said a reason was provided in good faith. IRIQ said the reason for the discontinuance was that the legal costs of the general protections proceeding rose beyond a level that was acceptable for Ms Hynes due to the matter not resolving at conciliation. IRIQ cited the case of Ross-Davis and Anor v JD Pty Ltd T/A Daniel Lightfoot Studios [2011] FWA 3767, and submitted it is not unreasonable nor remarkable to discontinue a matter due to rising legal costs at that stage of the process, nor is it unreasonable or remarkable to estimate costs on the basis that a matter will be resolved at conciliation.[9]
[57] Similarly, when considering s. 611(2)(b) of the Act, I am not satisfied that it should have been reasonably apparent to Ms Hynes that the application had no reasonable prospects of success. Ms Hynes sought legal advice and after receiving this advice, lodged the general protections application and the QHRC claim. Ms Hynes appears to have evidence she believes supports both claims. As noted, there are disputes of fact between the parties which would need to be tested in court to determine whether or not the allegations are made out. I am not satisfied the general protections application, had it been continued, would have had no reasonable prospect of success, or that Ms Hynes should have been aware of this.
[58] Likewise, in considering s. 376(2)(a) and (b), I am not satisfied that IRIQ encouraged Ms Hynes to start or continue the dispute, or that there was any unreasonable act or omission of IRIQ in connection with the conduct or continuation of the dispute. IRIQ advised Ms Hynes of her legal position after being approached by Ms Hynes as a potential client, took instructions, opened a file, and filed the relevant applications based on those instructions. IRIQ prepared the forms as required, detailing the alleged adverse action. When Ms Hynes faced mounting legal costs and instructed IRIQ to withdraw the general protections application, IRIQ promptly discontinued the application.
[59] While IRIQ perhaps should have clarified the erroneous reference to sex discrimination in the Form F8C, often the first contact between parties to a general protections dispute - beyond the completion of the Form F8C and Form F8A - is the conciliation conference as convened by the Fair Work Commission. It is common for particular grounds to be withdrawn at this conference. I also note there is no evidence that RISSB attempted to contact IRIQ or Ms Hynes to clarify whether sex discrimination was an argued ground. I am inclined to believe the evidence of IRIQ that the inclusion of sex discrimination was a genuine error and not an unreasonable act or omission.