c) the effective date of termination of the Applicant was 23 March 2018.

3. As the decision related solely to the issue of jurisdiction, items 1 to 3 in section 4 of the application are not claimable (relating to the substantive proceedings). Despite clear instructions on the application, items 4 and 5 have not been itemised in accordance with schedule 3.1 of the Fair Work Regulations 2009. As such, no fair chance to respond, or to assess the claim, has been given. It is not clear if the costs claimed are on an indemnity basis. There is no clear basis to claim item 6.

4. To the extent the Applicant's submissions and attached documents filed 26 September 2018 contain without prejudice communications and material concerning alleged underpayment claims, this material is inadmissible (see also the Transcript for 8 June 2018 at PN 71-78).

5. As the Commission is aware, an employee and employer must bear their own costs in relation to an unfair dismissal claim before the Commission. This is a fundamental and important underlying feature of the FW Act. In Roberts v Ngaanyatjarra Health Service [2016] FWC 4875 it was relevantly said [24]:

As a general rule each party must bear their own costs in proceedings before the Commission ... the power to order costs ... should be exercised with caution and only in clear cases.

6. There are limited exceptions to that usual rule such as with ss 400A and 611 of the FW Act.

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if 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 matter.

(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.

9. As is apparent by the use of the word "may", even if the section is enlivened, the Commission retains a discretion to not award costs. It is in rare and exceptional circumstances that costs will be awarded.

10. Section 400A was inserted into the FW Act by the Fair Work Amendment Bill 2012.

The Explanatory Memorandum provides at [169] and [171] respectively (our emphasis in bold):

... the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

11. The Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing [2014] FWCFB 810 held:

11.1. the power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case: at [27];

11.2. a party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful: at [30];

11.3. one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success: at [30]; and

11.4. the test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed: at [33].

12. Consistent with the above, in Baker v Salva Resources Pty Ltd [2011] FWAFB 4014, the Full Bench said at [10]: a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable Responding to grounds claimed for costs

13. Care needs to be taken that a successful outcome itself is not taken or used to be demonstrative of an 'unreasonable act', 'no reasonable cause' or 'no reasonable prospects of success'.

14. For a statutory body, issues of jurisdiction are important issues to be determined and over which satisfaction must be attained.

15. The jurisdictional issue turned on whether the Applicant was a contractor or employee at the relevant time. The determination of who is or is not an employee or a contractor is notoriously difficult, and at common law there is no single definition or definitive test to determine who is an employee. Australian courts have resorted to using what has been characterised as an "impressionistic" test, based on a multifactorial approach: A Stewart, Stewart's Guide to Employment Law (Sydney: The Federation Press, 2008), page 47. No one factor or matter is decisive. It cannot be said that the issue of status was unarguable, including due to:

15.1. the Applicant himself obtained advice from his accountant to be a contractor and took steps consistent with that advice;

15.2. the Applicant had told the Respondent in October/November 2017 he was advised to set up his own business and contract to the Respondent;

15.3. the Applicant established a company, OCON, in November 2017;

15.5. the Applicant asked for a "pty rate" from the Respondent in January 2018;

15.6. potentially consistent with a contractor relationship, the Applicant issued an invoice containing: his company name, company ABN, an amount for GST (i.e. for the provision of services) and OCON bank details for payment;

15.7. the Applicant later said "I'm willing to switch the last 7 weeks back to the original pay, not pty rate" suggesting there had been a change and they were operating as a contractor relationship;

15.8. a view could have been taken that the parties agreed to a contractor relationship, with a rate of not less than $60 an hour applying, but the Applicant was otherwise negotiating for higher rates or different billing/revenue sharing model; and

15.9. Courts have held parties to their intended relationship: Vella v Integral Energy [2011] FMCA 6 at [9]; Babsari Pty Ltd v Douglas Chee Yin Wong & Ors [1999] QSC 326 at [46].

16. As said above, the Commission formed a view that "on balance, the Commission, as presently constituted" was satisfied the Applicant was not a contractor: at [42].

17. It appears that a basis for the claim of costs under s 400A is comments made by Commissioner Johns on 8 June 2018 (at PN 68). In response it is said:

17.1. the hearing had not commenced on 8 June 2018 due to the Applicant not complying with earlier directions/orders of the Commission to file and serve his witness statement (PN 15-18);

17.2. the comments by the Commissioner should not be overstated. The comments, in the circumstances of the matter at that time - namely, the matter had not commenced hearing - were not concluded views so as to give rise to any issue of apprehended bias or pre-judgment. As such, it cannot be said that the comments mean there were no prospects of success etc. The Commissioner did not give any warning about consequences for the Respondent if it maintained its jurisdictional objection;

17.3. the Respondent had a response to the issue (PN 33, 37 and 43);

17.4. as said above, the determination of who is or is not an employee or a contractor is notoriously difficult, and at common law there is no single definition or definitive test to determine who is an employee and no one matter is decisive;

17.5. the decision ultimately made by the Commissioner, after hearing all evidence and argument, is an evaluative judgment over which minds may differ; and

17.6. the ultimate decision reached was "on balance, the Commission, as presently constituted" was satisfied the Applicant was not a contractor between 1 February 2018 and 23 March 2018: at [42].

18. Another basis for the claim of costs under s 400A is the rejection of a letter dated 12 June 2018. In response it is said:

18.1. the letter relies on what was said by the Commissioner at the listing on 8 June 2018 - to which we repeat our responses above;

18.2. the letter complains about having to prepare evidence noting that the evidence hadn't been prepared by the Applicant in accordance with earlier orders of the Commission; and

18.3. further, the proposal in the letter was not reasonable to the extent it conditioned a withdrawal of the jurisdictional claim with a demand that the Respondent pay costs (undefined) in circumstances of the general rule that each party pay their own costs.

19. A further basis to claim costs under s 400A is that further submissions were filed in the proceedings after the hearing on 19 June 2018 on the basis that doing so was an unreasonable act. In response it is said:

19.1. the Commission itself offered the parties the opportunity to make some final written submissions;

19.2. the taking of that opportunity afforded by the Commission is not an occasion to award costs, let alone being capable of being viewed as an unreasonable act; and

19.3. submissions were to be exchanged simultaneously.

20. The allegation of the Respondent's submissions being misleading at paragraph 27 of the submissions filed 26 September 2018 is a broad statement without any attempt to define. Such an allegation should not be made in that format and can be disregarded.

21. Finally, it is said that there is a basis to claim costs under s 400A on the basis "the Respondent has consistently been filing its documents after the time set in the orders". In response it is said:

21.1. as noted above, the Applicant did not comply with orders in preparation for the hearing on 8 June 2018 (and therefore himself contributed to additional costs being incurred - namely, requiring an additional time for the hearing);

21.2. the Applicant has otherwise failed to particularise the allegation "the Respondent has consistently been filing its documents after the time set in the orders" let alone how any such act was "unreasonable" and "caused costs to be incurred";

21.3. the Respondent acts in complying with orders of the Commission were as follows: [table not included]

22. As to the claim under s 611 of the FW Act that the jurisdictional objection was made without reasonable cause, or had no reasonable prospects of success, it is said:

22.1. the Applicant's lawyer sought leave to represent the Applicant under s 596 of the FW Act on the basis the matter was of such "complexity" to justify lawyers (PN 9, transcript 8 June 2018);

22.2. as said above, the determination of who is or is not an employee or a contractor is notoriously difficult, and at common law there is no single definition or definitive test to determine who is an employee and no one matter is decisive;

22.3. there were a number of factors that favoured a contractor relationship, including those set out at paragraph 15 above;

22.4. there was an explanation for the payment of money in an interim period when the Applicant had not provided OCON's bank details;

22.5. as in all matters, the Commission accepts one account of events over another, and forms views on the balance of probabilities;

22.6. the ultimate decision reached was "on balance, the Commission, as presently constituted" was satisfied the Applicant was not a contractor between 1 February 2018 and 23 March 2018: at [42]; and

22.7. a party cannot be said to have made an application 'without reasonable cause' within the meaning of s 611 simply because his or her argument proves unsuccessful: Church at [30]; R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470 at 473.

23. As to the claim under s 611 that the jurisdictional objection was made vexatiously, it is said:

23.1. the submissions at paragraph [44] of the submissions filed 26 September 2018 are made without evidence;

23.2. the submission at paragraph [45] of the submissions filed 26 September 2018 is speculative and without any evidence or basis;

23.3. the proposition that the jurisdictional objection was made with some other purpose was not put to the witness of the Respondent;

23.4. issues of jurisdiction are important for statutory tribunals like the Commission; and

23.5. the issue was raised, the Respondent was ready for it to be determined on 8 June 2018 (except for the Applicant's non-compliance) and the hearing was for about an hour.

24. Having addressed the basis for the claim for costs, it is respectfully submitted that:

24.1. the jurisdiction to consider a cost order is not enlivened; and

24.2. in the event ss 400A or 611 are enlivened (which is denied), the discretion to award costs should be exercised in favour of the Respondent.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter 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 matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

26. The grounds for the application against Mr Leon appear to be based on the cross-examination and re-examination of Mr Leon.

27. Other than identify an occasion when the Commissioner asked a question to be clarified (PN 123) and when the Commissioner raised issue with a question (PN 141), no other examples are provided. On the first occasion, Mr Leon was allowed to rephrase it (PN 124) and on the second occasion, the Commissioner indicated it may be "a matter for submissions" (PN 141).

28. It is difficult to see how asking questions, even if disallowed, itself can be said to be an unreasonable act. This is an ordinary occurrence of examination. No cautions or warnings were issued by the Commissioner to Mr Leon. Mr Leon was entitled to re-examine. Mr Leon did not persist with questioning in re-examination after the Commission interjected (PN 426).

29. The jurisdictional hearing went for about an hour on 19 June 2018.

30. There is no unreasonable act by Mr Leon in connection with his examination of witnesses and that caused costs to be incurred.

31. It is notable that the Applicant's lawyer did not, even as a matter of professional courtesy, place Mr Leon personally on notice of an application under s 401 of the FW Act (including in the letter of 12 June 2018).

32. There is no evidence that Mr Leon encouraged any jurisdictional objection. Though not ultimately accepted, there was evidence to support the jurisdictional objection in the evidence from Mr Sheehy (discussed above). The submissions above about the nature of these proceedings are repeated.

33. The application against Mr Leon ought to also be dismissed."

[26] The Applicant, in reply, submitted that,

The Respondent has correctly identified that the power to award costs is intended to address the litigants who pursue or defend unfair dismissal claims in an unreasonable manner.

The Applicant makes the following submissions in response to the Respondent's Outline of Submissions on Costs for the Commission's consideration.

The Applicant refers to the following paragraphs of the decision of the Commission (emphasis added):

[38] The evidence in this matter establishes that there was no legally binding contract as between the Respondent and OCON. For all of the relevant period the parties continued to be negotiating terms. The key term upon which there was no agreement was the rate of pay that OCON would receive in exchange for the work performed by its principal, the Applicant.

[39] Further, during the relevant period the Applicant continued to render personal service to the Respondent. The Respondent continued to pay the Applicant as it always had right up to 23 March 2018. The Respondent continued to make superannuation payments on behalf of the Applicant's period. While the Respondent says the payment of superannuation was an error, it is evidence of a continuing employment relationship in the period 1 February 2018 to 23 March 2018. There is simply no evidence that there was an agreement reached as between OCON and the Respondent such that monies paid personally to the Applicant would be deducted from an invoice that OCON was to provide to the Respondent later in time once there was an agreement on the rate to be paid to OCON. That did not happen. There was no such agreement. Such an arrangement would have been inconsistent with the independent contractor arrangements that the Respondent commonly put into practice.

[41] Consequently, the only conclusion that can be reached is that after 31 January 2018 the Applicant continued as an employee of the Respondent.

1. The Respondent did not have the requisite evidence to support their jurisdictional objection.

2. Prior to making their jurisdictional objection, the Respondent would have been aware of the evidence that they had.

3. The Respondent's submissions have quoted case law extensively so it is clear that they would be aware of what the law requires.

4. Paragraph 11.3 of the Respondent's submission observes that (emphasis added):

one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

If it can be assumed that the Respondent was aware of the same facts at the time of making its jurisdictional objection as at the time of the hearing, then it is clear that the facts were simply not there to support the Respondent's objection.

5. The Respondent has continued to put the Applicant to proof or require the Applicant to enforce for minor details throughout this entire matter, such as:

a. The Applicant has still not been paid any entitlements following dismissal and there is no indication that even uncontentious amounts will be paid. It is noted that in paragraph 45 of the Respondent's submissions it states that the Applicant's assertion that the Applicant has not been paid anything since the dismissal date is "speculative and without any evidence or basis" which means that presumably the Applicant will be put to proof on this matter even though the Respondent would be aware of the fact that it has not paid the Applicant.

b. The Applicant was forced to file a complaint with the Australian Taxation Office to recover unpaid superannuation. The Respondent had paid superannuation for part of the period that the Respondent asserted that the Applicant was a contractor but not the whole period.

c. The Applicant has been sent a PAYG summary reflecting a dismissal date that is inconsistent with the Commission's decision. This has not been corrected meaning the Applicant is unable to lodge his personal tax return. The Applicant will again need to file a complaint with the Australian Taxation Office to have this rectified.

6. The Respondent would reasonably have some awareness of the Applicant's financial capacity having employed the Applicant since 14 March 2011 and being aware of what the Applicant has been paid during that time.

7. The treatment of the orders made by the Commission by filing documents late is relevant as it is indicative of the Respondent's general attitude which can be inferred to be no better towards the Applicant than it is towards the Commission.

8. The Respondent continues to argue technicalities out of context. For example, on one hand it states in paragraph 22.5 of its submissions that "as in all matters, the Commission accepts one account of events over another, and forms view on the balance of probabilities". On the other hand, in paragraph 16 of its submissions it appears to seek to draw an inference from application of this test, through the use of the words "on balance" to suggest that this somehow is a reflection on the strength of the evidence. Whilst it may seem minor, when an entire matter is run this way it results in the matter being protracted and time and costs being incurred on submissions that are largely academic and of little substance.

9. As far as the Respondent's solicitor is concerned the contractor argument was first raised after the Respondent's solicitor became involved. Despite being without prejudice, the offer made by the Respondent prior to involvement of his solicitor does not contemplate an independent contractor arrangement in any way. The Respondent's solicitor would have been aware of this offer having made an objection to it prior to the first hearing.

The Applicant was initially seeking an order that costs be paid forthwith, as agreed or assessed.

This would mean that costs would either be agreed or determined at costs assessment. It would also allow costs to be paid now, rather than at a later date.

It would be at costs assessment that the Respondent would be given the opportunity to make any submissions it wishes to in relation to the time spent. It would also allow costs incurred by the Applicant in making any submissions to be claimed.

However, if the Commission is minded to make a cost order in favour of the Applicant but prefers to make a fixed costs order then the Applicant provides a sanitised version of the itemised costs for the Commission's consideration at Annexure A.

The Applicant would support a fixed costs order as it would eliminate delays caused by the need for the costs assessment process to be completed. The order may also assist in ensuring the balance of proceedings are carried out expeditiously."

Were the Respondent's Defences made without reasonable cause (s.611(2)(a))?

[27] In order for me to find that the Respondent Defences were made without reasonable cause I must find that they were "obviously untenable" or "manifestly groundless". I am not prepared to do so.

[28] Just because I found against the Respondent does not mean that it Defences were without reasonable cause.

[29] The Respondent's Defences were substantially lost because of the evidence given by Mr Sheehy during the hearing. While the documentary evidence pointed towards a continuing employment relationship, the employment vis-a-vis independent contractor relationship is notoriously difficult to determine. It requires the application of a multifactorial test. It requires a consideration of all the evidence. While some indicia might point strongly in one direction, others may point equally strongly in the other.

[30] Mr Sheehy genuinely held the belief that there has been some change in status of the Applicant as between him being an employee and then an independent contractor on 31 January 2018. However, the test to be applied is an objective one, not a subjective one. Consequently, when considering all of the evidence, on balance, I was not satisfied that, objectively, it could be said that, on and from 31 January 2018 the Applicant ceased to be an employee.

[31] As in any hearing, the evidence could have gone the other way. I have seen many a case (even stronger ones) lost because the oral evidence does not reach the mark that is necessary to carry the day. That is what happened in this matter. Reasonable minds can differ. Two opposing interpretations can be equally respectable. However, in the Jurisdictional Objection Decision I was required to prefer one interpretation over the other. On this occasion I preferred that of the Applicant.

[32] At the end of the day the continuing personal service and the continuing payment into the Applicant's personal bank account were, on an objective basis, more suggestive of a continuing employment relationship. Under cross-examination the Applicant may have made concessions about the off-setting of those continuing payments into his personal bank account against fees to be rendered by OCON. Mr Leon made those attempts. He was, based on his instructions, entitled to do so. However, he failed to extract the necessary concessions. That led me to the conclusion that the interpretation of events advance by the Applicant was to be preferred.

[33] For these reasons I am not satisfied that the Resignation Defence and the IC Defence (and consequently, the Out of Time Defence) were disclosed a case which could not succeed. Consequently, section 611(2)(a) is not enlivened.

Should it have been reasonably apparent to the Respondent that its Defences made had no reasonable prospects of success (s.611(2)(b))?

[34] For the same reasons I am not satisfied that it should have been reasonably apparent to the Respondent that the Respondent's Defences had not reasonable prospect of success. The Respondent's Defences were not so obviously untenable that they could not have succeeded. It might have been that Mr Sheehy and Mr O'Connell did agree upon some interim arrangement for the part payment of moneys pending settlement of the terms upon which OCON was to be engaged. However, the evidence at the hearing did not come out that way.

[35] Therefore, the fact that the Respondent's Defences were not successful is not enough to enliven s.611(2)(b).

[36] In the face of the documentary evidence the Respondent had a harder road to travel to convince me of its interpretation of the facts. But it was not until Mr Sheehy gave his evidence that the documentary evidence won out. Further, had the Applicant made the concessions sought of him in cross-examination, the Respondent's Defences may well have been successful.

Did the Respondent cause the Applicant to incur legal costs because of an unreasonable act by the Respondent?

[37] There is no doubt that the Respondent's Defences have added to the work required to be undertaken by both parties in this matter and also to the costs of both sides. However, that is not the test to be applied in determining if a party has acted unreasonably.

[38] What is unreasonable depends on the circumstances. However, one of those circumstances is not that a party lost an argument. With the benefit of the Jurisdictional Objections Decisions, it likely looks like the Respondent's Defences were doomed to fail. But that is not how they looked at the beginning of the hearing. At all times I had an open mind that the documentary evidence (which was strongly against the Respondent) might be "trumped"[12] by the oral evidence of Mr Sheehy and concessions sought from the Applicant in cross-examination. However, the oral evidence did not meet the mark necessary to defeat the documentary evidence.

[39] Because I have found that none of sections 611(2)(a), 611(2)(b) or 400A are enlivened it necessarily follows that s.401(1A)(b) is not enlivened.

[40] In the decision of Meys v Sawtell Hotel, Vice President Catanzariti stated:

"[50] ... It is not the role of this Commission to exercise its discretion to issue a costs order in lieu of the prima facie assumption that a party will bear its own costs - an assumption which the authorities require me to cautiously adhere to - when to do so would inflict additional financial and emotional hardship on an already vulnerable self-represented Applicant who has not acted vexatiously, unreasonably or in bad faith." [13]

[41] For the reasons set out above the Commission, as presently constituted, is not satisfied that the Respondent's Defences were made without reasonable cause. Nor is the Commission, as presently constituted, satisfied that it should have been reasonably apparent to the Respondent that its Defences had no reasonable prospect of success. Therefore, the Commission has no jurisdiction pursuant to s.611 of the FW Act to order costs.

[42] I accept that the Applicant incurred significant costs to prepare for, and to defeat the Respondent's Defences. However, for the reasons above I am not satisfied that there is any jurisdiction to award costs.

[43] In all the circumstances of this matter the Commission, as presently constituted, is also not satisfied that it the Respondent engaged in an unreasonable act. Consequently, the Commission, as presently constituted, is not persuaded that s.400A of the FW Act is enlivened and therefore the Commission has no jurisdiction to order costs pursuant to s.400A of the FW Act. Consequently, there is also no power to award costs against Mr Leon personally.

[44] Having determined that the Commission does not have jurisdiction to order costs in this matter it is not necessary for me to say anything further about the exercise of the discretion. However, even if the jurisdiction to order costs pursuant of s.611 or 400A was enlivened, I would have declined to order costs in this case as a matter of discretion. This is because, as I have stated above, must of my reasoning in the Jurisdictional Objection Decision was based on what did (and did not) fall from the mouths of the witnesses in the hearing. I am not satisfied that the Respondent's Defences were concocted or pursued as a means to drive up costs or frustrate the matters being pursued by the Applicant.

[45] For the reasons given, Mr O'Connell's application for costs pursuant to s.400A and s.611 of the FW Act is dismissed.

[46] An Order to that effect will be issued with this Decision.

[1] [2018] FWC 4065.

[5] McKenzie v Meran Rise Pty Ltd (AIRCFB, Giudice J, Watson SDP, Whelan C, 7 April 2000) Print S4692 [7].

[6] General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [17].

[7] R v Moore; Ex Parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [20].

[8] Zornada v St John Ambulance Australia (Western Australia) Inc. (2013) 237 IR 48 [35].

[9] Baker v Salver Resources Pty Ltd [2012] FWAFB 4014 (Watson SDP, Drake SDP, Harrison C, 27 June 2011) [10]; citing Deane v Paper Australia Pty Ltd (AIRCFB, Giudice J, Williams SDP, Simmonds C, 6 June 2003) PR932454 [7].

[10] Explanatory Memorandum, Fair Work Amendment Bill 2012, 37 [171].

[11] Explanatory Memorandum, Fair Work Amendment Bill 2012, 37 [171].

[12] I mean that in the card game playing sense, not in the USA Presidential sense. If you "trump" another player's card, you beat it with a card that belongs to the group of cards that has been chosen to have the highest value in the game you are playing e.g. as played in five hundred, bridge or, the Bronsons' favourite card game, euchre.

[13] [2016] FWC 5561.

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