NSWNSWIRComm

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624; Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack

[2013] NSWIRComm 1000

Industrial Relations Commission (NSW)|2012-07-18

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2012-07-18

Catchwords

Unfair Dismissal application
Victimisation application
applications travelled together
same witness statements submitted for both matters

Source

Original judgment source is linked above.

Catchwords

Unfair Dismissal applicationVictimisation applicationapplications travelled togethersame witness statements submitted for both mattersapplications to be heard simultaneouslycosts incurred in defending one cannot be isolated from the otherfrivolous claimapplicant unreasonably failed to agree to a settlement of the claimcosts awardedEx parte Lai Qin (1997) 186 CLR 622 at 624Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302One Tel Ltd & ors. v Commissioner of Taxation (2000) 101 FCR 548Gribbles Pathology Pty Ltd v Health Insurance Commission & Ors. (1997) 80 FCR 284Australian Securities Commission v Aust-Home Investments Limited & ors. (1993) 44 FCR 194)Frost v The Speaker of the Legislative Assembly of New South Wales (No 2) [2001] NSWIRComm 14Saddington v Oliver and Others (1993) 43 FCR 545Bankstown City Council v Paris (1999) 93 IR 209Phillips v Industrial Relations Commission (NSW) (2006) 154 IR 96Peden v Lake Macquarie Refrigeration Pty Ltd (2004) 134 IR 149

Judgment (14 paragraphs)

[1]

DECISION 1Ms Wendy Nixon was employed by the Snowy River Shire Council as a Compliance Officer. She commenced employment on 11 November 2002 and, at the time of her dismissal, was also the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the USU) Indoor staff Delegate. 2On 6 July 2011, Ms Nixon was issued with a letter by the Council to show cause why her employment should not be terminated. Ms Nixon responded by email on 14 July 2011 and a meeting was arranged between the parties for 19 July 2011. 3The USU became involved and commenced negotiating a settlement with Council 4A settlement was not able to be achieved and dismissal was effected on 20 July 2011. 5On 3 August 2011, Ms Nixon filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the IR Act) seeking relief in relation to her alleged unfair dismissal. Ms Nixon sought reinstatement to her former position or re-employment to another position or monetary compensation (IRC 1311 of 2011). 6On 5 August 2011, the USU filed an application pursuant to section 213 of the Act seeking relief from victimisation (IRC 1335 of 2011). The application sought the following:

An order for reinstatement or re-employment;
An order that the employer pay to the employee the whole or part of the amount of remuneration and any other financial benefits lost or forgone;
Any consequential orders (including orders concerning continuity of service); and
An order for the payment of the sum of $71,708 allegedly being loss of income and superannuation. 7Both applications travelled together, as it were, before the Commission. Both matters were conciliated, unsuccessfully, on three occasions - 11 and 18 August 2011 before the Commission as currently constituted and again on 24 October 2011 before Connor C. 8Standard directions were issued. Ms Nixon filed one witness statement, which was her own, on 13 September 2011 and relied on that statement for both proceedings. The Council filed and served five witness statements on 12 October 2011 also in relation to both proceedings. 9At further proceedings before Connor C on 2 November 2011, the USU formally sought, and was granted, leave to cease to act on behalf of Ms Nixon. 10Connor C advised the parties that he had received correspondence from Ms Nixon advising that she had instructed the USU to cease acting on her behalf and intended to take all her grievances to other tribunals, including the alleged unfair dismissal and alleged victimisation matters. 11Connor C dismissed both applications.

[2]

NOTICE OF MOTION 12The Snowy River Shire Council filed a Notice of Motion on 16 November 2011 seeking costs pursuant to section 181 (2)(c) of the IR Act in relation to the section 84 Unfair Dismissal application. 13The Council sought the following orders: (a)An order to award indemnity costs to Snowy River Shire Council in these proceedings; and (b)Such other order as to costs that the Industrial Relations Commission of New South Wales considers appropriate in the circumstances. 14At the hearing on 18 July 2012, the Council amended its notice of motion. on the basis that it is now seeking an order of costs on the ordinary basis, as agreed or assessed, including the costs of this Notice of Motion. 15The grounds relied on by the Council are: (1)Ms Nixon pursued a frivolous and vexatious claim; and (2)Ms Nixon acted unreasonably in failing to agree to a reasonable settlement offer; and (3)Ms Nixon acted unreasonably in that her conduct was inconsistent with an intention to settle the proceedings on any basis which could be considered reasonable. 16It was pointed out that two settlement offers were made to Ms Nixon in relation to the issue of costs, the most recent being on 11 July 2012. Both offers were rejected by Ms Nixon. 17Ms Perigo, Counsel for the Applicant in the Notice of Motion, pointed out that her client is seeking an order for costs on the ordinary basis pointing out that if it can satisfy the Commission that the jurisdictional gateway has been opened and discretion should be exercised and costs should be awarded. It was left to the Commission to determine whether indemnity costs should also be awarded.

[3]

LEGISLATIVE FRAMEWORK 18Section 181 of the IR Act deals with the issue of costs and relevantly provides as follows: s.181 (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 case, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or ... 19Part 12, Costs, of the Industrial Relations Commission Rules 2009 (the IR Rules) relevantly provide: 12.1 Application This Part applies to costs in civil proceedings before the Commission constituted otherwise than as the Industrial Court. Note: Costs in civil proceedings before the Industrial Court are dealt with in Part 42 of the Uniform Civil Procedure Rules 2005. 12.2 Time for dealing with costs (1) The Commission may exercise its functions as to costs at any stage of proceedings or after the conclusion of proceedings. (2) When awarding costs, the Commission may direct that costs be paid forthwith even if the proceedings are not concluded. 12.3 Assessed costs and other provisions When awarding costs, the Commission must order the costs to be assessed, as referred to in section 181 (1)(d) of the Act, unless it is satisfied in the circumstances of the case that it is inappropriate for the costs to be assessed....

[4]

The Council Evidence 20Mr Brian Cleveland Williamson, Solicitor with WilliamsonLegal, provided a statement in the proceedings in which he advised that his firm had been engaged by the Council to defend several proceedings brought by Ms Nixon against his client. His written and oral evidence is summarised below. 21He was aware that the Council had scheduled to meet with Ms Nixon on 19 July 2011 in relation to the letter by the former to the latter to show cause why her employment with Council should not be terminated. 22Mr Williamson stated that he was informed on 18 July 2011 by Mr Luke O'Sullivan, Human Resources Manager for the Council, that the Union had been in touch with him and offered, on Ms Nixon's behalf, that she would tender her resignation in return for a sum equivalent to redundancy pay payable to an employee with nine years' service. That equated to 31 weeks' pay or approximately $41,000 paid as a lump sum payment. 23Mr Williamson stated that the terms attached to the offer of resignation changed on 20 July 2011. He said he was advised by Mr O'Sullivan (at 8.10 am) that: Mr Golledge indicated to me last night that Nixon would only accept a settlement of forty (40) weeks' pay at her usual remuneration and for that amount she would resign. Joe [Vescio, Council's General Manager] and I discussed it and Joe said "no way". 24The latter offer was confirmed by Mr Golledge during a conversation with him later that morning (10.19 am). Mr Williamson recalled the following conversation with Mr Golledge: Golledge: I can settle for 40 weeks and Nixon will resign. Williamson: No. The most I can offer is 10 weeks and the opportunity to resign. Golledge: Council offered 26 weeks last night. Your client is reneging. Will you re-check with Council? 25Mr Williamson confirmed his instructions and called Mr Golledge later that morning (11.04 am) and advised: Williamson: There was no offer of 26 weeks from Council. 10 weeks is all I have. Golledge: She won't take ten weeks. She is hysterical and hung up on me. 26Mr Williamson stated that, approximately 10 minutes prior to the scheduled meeting (11.48 am), Mr Golledge rang him and advised that Ms Nixon would not be in attendance. 27He recalled that later that afternoon (at approximately 4.06 pm), Mr Golledge called to advise that the union wished to continue negotiating a settlement. 28Mr Williamson stated that later that same afternoon, Mr Golledge called and advised that he had received instructions from Ms Nixon that she would settle for:

[5]

Witnesses called pursuant to a Summons by Ms Nixon 66Ms Nixon had issued a summons requiring Mr John Robert Cahill, Mayor of Snowy River Shire to attend to give evidence. His term had another four weeks to run before the next Council elections. His oral evidence is summarised below. 67During evidence-in-chief, Mr Cahill confirmed that he had visited Ms Nixon at home to deliver documents to her. He agreed that he told her that he had tried to contact her by telephone but it turned out that she had handed the Council telephone back and so the only way he could comply with the Privacy Commissioner's direction was to take the documents to her house. 68Ms Nixon had not included the letter of 3 April 2012 as part of her statement in the costs proceedings. Nevertheless she attempted to question the Mayor on the contents of that letter. She was allowed to do so but only in relation to relevant issues which are summarised below. The remainder of the alleged discussion with Mr Cahill were irrelevant to the issue of costs and can be classified as nothing higher than office gossip. 69Mr Cahill contended that Ms Nixon did the talking during that visit and he had listened. He denied the allegations made by Ms Nixon in relation to the any discussion about the General Manager of the Council. 70Mr Cahill also agreed that he expressed regret at her departure from Council but, contrary to her statement, could not have said he tried to "look after her" because he was precluded from involving himself in employment related matters. 71Mr Cahill recalled that she had mentioned the legal costs that Council was incurring but denied that he had mentioned any figures to her. He said he was not aware of the costs as it was an operational matter of which he had no knowledge. Following Ms Nixon's comments to him, nevertheless, he had checked and discovered the legal costs were very high indeed. 72In relation to Ms Nixon's contention that he had disclosed to her figures discussed in confidence at a Council meeting regarding settlement of her claim, Mr Cahill gave evidence that he would not have been at liberty to disclose to her anything that was discussed in confidence in Council in relation to the ambit of any offers to her. In any event, he had not had that conversation with her because Council not yet met and the resolution she mentioned in the letter of 3 April 2012 had not yet been passed. 73Mr Cahill stated that the conversation on offers had occurred during a discussion with a union official, whose identity he did not know, who rang him on behalf of Ms Nixon at a time when Ms Nixon was seeking two years' pay. He said he received the call while he was driving to a Council meeting. The official had suggested, and he had agreed, that they would deny that the conversation ever took place. The official had suggested to him that if he could get Ms Nixon 43 weeks' pay the issues would go away. As he was concerned about the cost effect on Council, he raised the matter at that Council meeting. Council had resolved to approve a certain amount but allowed for the General Manager to negotiate a lower figure if possible. 74Mr Cahill pointed out that employment related matters were the responsibility of the General Manager and he reported to Council meetings on such issues for their information only. Councillors did not interfere with his decisions. 75Ms Nixon contended that the Council expended $1.7M in legal fees rather than pay her $50,000 to settle her claims as approved by the Council meeting: CAHILL: Could I answer Commissioner inasmuch as a General Manager is authorised to negotiate I have no understanding of what is fair and reasonable in these cases, I have no experience in arbitration matters or in staff settlement issues. So I couldn't reach an informed decision, it's up to the General Manager to fulfil that role, it's his experience and it was authorised by that motion to negotiate with him. He would know what was appropriate and he would presumably negotiate at or around whatever is appropriate. Now I can't form an opinion as to what is appropriate I don't know. 76Ms Nixon issued a summons requiring Mr Joseph George Vescio, General Manager of Snowy River Shire Council, to attend to give evidence. His oral evidence is summarised below. 77Mr Vescio confirmed that it was his role to make decisions on employment related issues upon receipt of all relevant information. He pointed out that it is illegal, pursuant to the Local Government Act for matters discussed by Council in confidential session to be divulged or for Council to involve itself in employment-related matters. He stated that when Mr Cahill discussed with him the offer he had received from a union official, he responded with words to the effect, You can put that to council, if they direct me to do that I will do that but I will have to seek legal advice as to whether that is a legal resolution of council because it is a staff matter. 78Mr Vescio recalled that he was made offers by the USU officials and had questioned Mr Oppitz, Mr Golledge and perhaps Mr Steve Vann (the local organiser) as to why he would agree to pay in excess of 26 weeks pay to Ms Nixon when, on a bad day in the Commission, the Council's maximum exposure would be 26 weeks. A. No my recollection is that there was a meeting with Mr Oppitz in Canberra. I think that was before the dismissal. There was a series of telephone conversations on various dates, immediately after the dismissal and in the lead up to the IRC matters. Then there was a meeting with Mr Golledge, Mr Vann and then the two Mr Vanns, Greg and Steven with myself, the Manager, Human Resources of the Council, Luke O'Sullivan, and the Senior Manager-Governance Ms Iliada Bolton at the Snowy Hydro offices. 79Mr Vescio stated that he understood that all the offers made had been communicated to her by the USU:. VESCIO: Yes.... My recollection of what I said was that I understood that the union were making those offers, you know, the offers that we were making were being communicated to you and we were receiving a response. You know, and in all the offers we made I discussed it with council's legal advisors and our - our HR manager and the senior manager governance to make sure that we were reasonable in what we were trying to - trying to resolve the matter. We believed they were reasonable. I assume the union and yourself didn't like the offers so they were rejected 80Mr Vescio recalled that the union representatives usually responded to offers from Council in the following way - "We don't think she will accept that but we will put your offer to her." and they would later return with the response, "No it has been rejected." A. I recall the meeting I said that we met in Snowy Hydro my recollection is that at that meeting I think Greg Vann said they'd either met with you before or they were meeting you after. I can't recall exactly but they said they were meeting you that day. They was a number of other issues we discussed not related to you. 81Mr Vescio recalled that the union offered to settle for two years' pay plus a car saying, "We will fight it, if council dismisses Ms Nixon we will fight it." 82Mr Vescio recollected that Ms Nixon had been copied into some emails and correspondence in relation to those offers. 83Ms Nixon questioned Mr Vescio in relation to the costs applications made against her and the USU. White Barnes Solicitors appeared on behalf of the USU and Mr Williamson appeared on behalf of the Council before the Commission as currently constituted. On that occasion it was clarified that the matter was not being pursued against the USU. Vescio: A. Correct, because council had been - been forced to incur legal costs as well as staff travelling and accommodation costs, to send staff to a Commission hearing, .... I wasn't there, but I believe the union arrived and said, "We've been sacked." You did not appear, so the matter was dismissed. We incurred those costs. We'd attempted to make offers to resolve it. I received legal advice, discussed the matter and we lodged applications for costs, my recollection against yourself and the union. 84Mr Vescio explained that when a matter is raised by an employee and that employee seeks the assistance of the union then the Council would deal with the appropriate representative of the union. He recalled that he had various dealings with representatives of the USU in relation to staff grievances - with Ms Nixon when she was the Indoor Staff Delegate; Mr Halliwell who was the Outdoor Staff Delegate; Mr Oppitz and Mr Gary Vann and, more recently, Mr Steven Vann as local organisers. When those issues advanced beyond the initial stages, they became industrial relations matters which were dealt with Mr Golledge, the Southern Industrial Officer. The decision as to whether it was he who dealt directly with the USU or Mr O'Sullivan depended on the severity of the issue.

[6]

Ms Nixon's evidence 85Ms Nixon had failed to file a statement in the costs proceedings per se. She relied on correspondence she had forwarded to the Commission dated 23 February 2012 in which she contended the following: (i)she was never the applicant in either of the proceedings. She argued that the USU was the applicant and it was only ever proposed that she be a witness in the proceedings relating to both claims; (ii)the statements of Messrs Williamson & O'Sullivan relate to negotiations between the Council and the USU officials and she was not mentioned in any of the negotiations; (iii)she was unaware of any of the alleged conversations, emails, negotiations or telephone calls between the Council and officials of the USU as contained in the statements; and (iv)she was informed that she did not have to attend IRC proceedings as the USU was the Applicant in both proceedings. 86It was pointed out to Ms Nixon that she had not called any of the union officials to give evidence on her behalf in relation to the above contentions. She was given the option of either relying on the contents of her letter of 23 February 2012 which would be treated as submissions from the bar table and not hold as much weight as the Council's sworn evidence or give her evidence from the witness box in which case she would be cross-examined on that evidence. The following exchange took place between the Bench and Ms Nixon earlier in the proceedings: COMMISSIONER: Ms Nixon, ..... Is your case today that the union never put any of those discussions to you, any offers to you, any offers of settlement by the respondent, is that what you say? APPLICANT: What I am saying is, is that in this statement [Williamson] it refers to all these conversations and things like that. COMMISSIONER: Yes. APPLICANT: I am unaware of a very high amount of these particular conversations which I didn't even know were being held. COMMISSIONER: Well, you have seen the statements, you have had the statements, this particular statement, it says 27 January of this year. APPLICANT: Yes. COMMISSIONER: What attempts ... have you made to call the union to give evidence here today? You've called people from the council. APPLICANT: Yes. COMMISSIONER: About conversations you've had, but you haven't made any attempt, this is a [costs] application against you, very serious matter, we are talking about a few thousand dollars, and you haven't made any attempt to get the union here to refute these statements that you've known about since 27 January. APPLICANT: Well, because-- COMMISSIONER: If you've known about these statements, what attempts have you made to contact the respondent or Mr Williamson on behalf of the respondent to try and settle the matter? APPLICANT: For me to contact Mr Williamson? COMMISSIONER: Yes. I mean if you're saying that the union has spoken on your behalf and then you sacked them because they didn't resolve the matter, you've sacked them, you have had no representative since the union stopped representing you, what attempts have you made to try and settle the matter? These are matters that you have to think very seriously about. These are serious proceedings here today, but if you're saying to me that these have not been made - these offers have not been put to you, well, Mr Williamson is saying, "I've put them," you've known that since January. APPLICANT: Yes. COMMISSIONER: If you have no one from the union to give evidence to refute them here today, and I am not granting an extension of time to do that either. APPLICANT: No, that's okay. COMMISSIONER: Then you have to be prepared to go in the witness box yourself on oath and say that you have not received any of those offers and be cross-examined. Are you going to do that? APPLICANT: Well, I will have to if that's the case. COMMISSIONER: Yes. APPLICANT: The only reason is, is that it's not negative about the union, I am not being negative about the union and it wasn't an issue of me calling them, you know, because I'm still friends with them. The issue is, is that I think everyone got so wrapped up with what was happening and being very frustrated-- COMMISSIONER: Well, it's a matter between you and your representatives. APPLICANT: Yes. COMMISSIONER: Offers were made by the respondent. Evidence has been given of the dates and times of those offers. APPLICANT: Yes. COMMISSIONER: When they were given, what responses they got, et cetera. They have done what is required of them. You will have to refute those things and if you haven't got the union then [you are] your best witness. APPLICANT: Okay. COMMISSIONER: You have to go on oath and be cross-examined on those - on every single one of those offers that were put. 87There was a further exchange with Ms Nixon as she struggled to run her case: COMMISSIONER: Ms Nixon it comes down again to what I told you earlier this statement [Williamson] was sworn on 24 January 2012, it would have been filed at the time when the filing schedule was required to be met and that was what 27 January. You have had that since 27 January we are now in July. You had enough chance to talk to the union, find out from the union if this occurred or did not occur and prepare your case. APPLICANT: The issue which I said before was, is that when I got all these documents I don't know what was said, I don't know and -- COMMISSIONER: Well that's just it, you've got these statements unless you can refute them they stand. To refute them you need to have gone and talked to your union and found out whether these are true or not true, so that you can formulate the questions to ask the witnesses. APPLICANT: Or I can get in the witness box later on. 88Ms Nixon decided to give sworn evidence. She contended that she was currently a carer for her uncle and working part-time. She stated that both applications were filed by the USU "in good faith" and were not in any way, shape or form vexatious or frivolous. She stated that the applications were lodged after obtaining professional advice from the union's legal team. 89Ms Nixon pointed out that in the section 84 Unfair Dismissal application, the USU was the actual applicant and she was intended to be a "witness" in the proceedings as evidenced by the affidavit dated 9 September 2011 which she prepared for the hearing which did not ultimately proceed. 90Ms Nixon noted that the Council originally sought that costs be awarded against the union as the actual applicants and then decided not to pursue that course, "You can't go after the shark then decide that it is too hard and decide to go the goldfish!" 91Ms Nixon pointed out that neither of the statements of the Council's witnesses indicate that she had involvement in any of the settlement negotiations nor give any indication that she knew what was going on. 92During cross-examination, Ms Nixon confirmed that she was still friends with the named union officials. She agreed that there was no reason why they could not be called to give evidence on her behalf but she had not taken any steps to arrange it. 93She confirmed that she was in the role of Union Delegate over the last two years of her employment representing the interests of the members to management. 94Ms Nixon agreed that the role of the union is to represent the interest of its members. If the member has a problem, then the union is going to listen to what that member says is the problem and what the member wants in relation to a resolution of that problem, subject to weighing up amongst its internal and external advisers as to whether to take on a particular matter. Despite that knowledge of the role of the Union, Ms Nixon was loathe to admit that the union was acting on her instructions during the period of negotiations prior to, and post, her dismissal as is evidence by the following cross-examination: PERIGO; Q. Ms Nixon, if you in your situation where you're job is in jeopardy, before the termination of your employment, you were instructing them in relation to the investigation into your continuing employment, weren't you? NIXON; A. What do you mean "instructing," like what was I doing? Q. You were talking to them about the issues you were having with council? A. About this Court matter? Q. No, before your dismissal there were discussions between the council and the union? A. Yes. Q. Part of the reason those discussions took place, Ms Nixon, I am putting to you, is because you got the union involved in the matter, didn't you? A. I don't know if I got them involved, as soon as they were aware of what was happening-- Q. But, Ms Nixon, they were there acting on your behalf, weren't they? A. Well, I don't know if - because they were the applicant so-- Q. No, Ms Nixon, that is not the question I am asking you, I am asking you before your dismissal when there were discussions about what possible outcomes there may be, the union were discussing your matter with the council on your behalf, weren't they? A. Well, I've already said that some of the matters that they were discussing and things, it couldn't have been on my behalf because I don't have knowledge. Q. Ms Nixon, they were discussing what was going to happen with your continuing employment, weren't they? A. With my? Q. Continuing employment? A. I think there was some conversations about the continued like when I was still employed there. Q. They were doing that on your behalf, weren't they, they were your representative in those discussions? A. Well, you said "those discussions", like which discussions because I've already said I don't have knowledge on some of the - until I actually got the statement there were things said in these documentations that I don't even know. Q. Ms Nixon, what I am putting to you is before you were dismissed there was a series of discussions about your continuing employment and one of them involved settlement and I am putting to you that the union in that discussion involving settlement, which was 15 July 2011, they were there on your behalf, weren't they? A. They were - in discussions they were obviously discussing me and they were there representing me, however, a lot of the content I don't know what was said. Q. But, Ms Nixon, you just agreed with me, didn't you, that they were there representing you? A. Well, I just said that they were representing, you know, the-- Q. Thank you. So if your union is representing you, they're doing that because you've given them a particular set of instructions that you want them to follow in your case? A. No. If you're the union member you're not telling the union what to do, they were advising me, that's why you pay your union fees, that's why you're in a union. Q. So, Ms Nixon, they provide you with advice and guidance, yes? A. (No verbal reply). Q. That's right, isn't it, they provide you with advice and guidance on a range of matters? A. Yep, yeah, that's right. Q. Ms Nixon, you also gave instructions for the union to act for you once you'd been dismissed, didn't you? A. Well, it was continued on, it was all-- Q. So they continued their representation of you, didn't they? A. Through the whole thing, yeah. Q. Again, they were acting on information that you were providing them? A. Well, I can't say if they were acting on what I provided them because they could have been doing a lot of negotiation and different things-- Q. Ms Nixon, you were telling them about things that were happening to you, weren't you? A. Is that when I left or-- Q. All the way through? A. They were aware of what was occurring, yes. Q. But they were aware because you were telling them, weren't they, you mightn't have been the only one telling them, but you were telling them what was happening, weren't you? A. If they asked certain different questions or, you know, wanted to know information about the - you know, what was happening, yeah, I discussed and liaised with them. Q. Ms Nixon, you told them what you wanted, didn't you? A. Yeah, I'm pretty sure I told them what I wanted. 95Ms Nixon was taken through the section 84 application. She agreed that the second page of the Application Form contained a box which required information in relation to the "Personal Details of the Employee (Applicant)". She reluctantly agreed that it was her name that was inserted as the Applicant in Question 1. She also agreed that on page 5 she was asked in Question 30 whether she was being represented and the box against the option "Union" had been crossed and the name of the union official, Mr Rudi Oppitz, had been provided including his contact details in Question 31. 96In relation to the relief sought, the three options of reinstatement, re-employment and monetary compensation had been ticked. Ms Nixon pointed out that it was the USU's idea to tick all three boxes pointing out to her that it was "a starting point" for negotiations. 97Ms Nixon was taken to the transcript of the proceedings before Connor C on 2 November 2011 during which Paul Wesley stated that Rudi Oppitz told him that the offer was put to Ms Nixon by telephone on 25 October and she had rejected it. Ms Nixon kept insisting that she did not know Mr Wesley instead of responding to the question as to whether or not the union was representing her. Following persistent cross-examination, Ms Nixon grudgingly admitted that she knew that Mr Oppitz was attending the proceedings on 2 November 2011 and therefore the union was representing her. In relation to that settlement offer, she stated that she could not remember the exact date or which offer it was. Q. But Mr Oppitz put an offer to you, didn't he, that had been made by the council? A. My recollection is, is that there was quite a few different types of negotiations and I do remember being contacted and sort of told how the negotiations were going and what, you know, what had transpired sometimes, you know, don't know. Q. But, Ms Nixon, let me take you to this specific instance, so we're talking about the offer around 25 October, that's the offer of seven weeks, as I understand, that's right isn't it? A. Is it, seven weeks? Q. Yes. So, Ms Nixon, Mr Oppitz put that offer to you, didn't he? A. Well, I'm not really sure because I can't recollect, you know, that exact amount, dates and times. Q. Mr Oppitz reported back that you've declined the offer, so you told Mr Oppitz that you weren't interested in the offer of seven weeks, hadn't you? A. I do recall the offer of seven weeks whenever it was, like date or times or what not, and that I did decline it. Q. You did that through discussions with your union representative, didn't you? A. Yeah, I think Rudi rang me and said that was their offer and that basically the union's position and advice was not to accept it. 98Ms Nixon agreed that she had not attended the first conciliation and directions hearing before the Commission on 11 August 2011. Despite her earlier protestations, she admitted that the union had attended on her behalf and had discussed the matter with her prior to the conference. She said she had not attended because, firstly, she was informed by the union that she did not have to attend because the union was going to negotiate on her behalf; and secondly, even though, technically, it was her application, she was not "running the show" and she would go along with whatever decision her legal advisers made. She could not confirm that Council had made an offer of five weeks nor could she confirm that the Union made a counter offer of 26 weeks. She stated that she was not sure about any offers made by Council or counter offers made on her behalf by the union on that occasion.. 99Ms Nixon also accepted that she did not attend the second conciliation conference on 18 August 2011 and agreed that the union was again acting on her behalf. 100She confirmed, once again, that she did not attend the conciliation conference on 24 October 2011 for the same reason as previously. She confirmed that she knew it was another opportunity to try and resolve the proceedings. She confirmed that Mr Oppitz had called her "at the end of the day or the next day or when he possibly could" to advise her about what had actually happened. 101Ms Nixon agreed that Mr Oppitz would tell her if any offers were made. She recalled that she was advised about an offer of seven weeks but could not recall at what stage of the proceedings that offer was made. She agreed that she had rejected the offer: PERIGO; Q. You rejected all offers made by the council, didn't you? A. I rejected the offers that I received or, you know, told - told to me by the union as I deemed them unreasonable and that I worked full-time, I'd been with the council 16 years, I was earning well over 70,000 and a car.... 102Ms Nixon denied that she had no interest in the section 84 proceedings or that the proceedings were of little importance to her as it was only one of a number of proceedings she was pursuing against the Council. She stated that she had discontinued the proceedings because the relief under that section was capped at 26 weeks. Q. Ms Nixon, it's a matter though that you knew would cause the council to spend money defending it, wasn't it? A. Sorry? ..... Q. The question to you was, you knew that the council would have to spend money to defend this application? A. Well, of course they're going to have to spend money to defend it, if they chose to, but they wouldn't reasonably come to negotiation. 103It was noted that Ms Nixon had filed her witness statement in the section 84 arbitration proceedings on 9 September 2011 and Council had filed a range of evidence around about 12 October 2011. It was put to her that she had waited until all the evidence had been filed before she discontinued the proceedings because she wanted to put the Council to as much expense as possible and inconvenience Council as much as possible by expending time and energy in preparing the material in response. That proposition was denied by Ms Nixon who insisted that she wanted the matter resolved and "the union were doing all the negotiations for me". 104Ms Nixon admitted that she was aware that offers were made by the union on her behalf on or about 18 July and 19 July that Council pay her 31 weeks' pay and 40 weeks' pay respectively in settlement of the claim. She was also aware that the offers had been rejected. 105Ms Nixon confirmed that she had held discussions with Mr Golledge prior to her dismissal but was unsure about an offer by Council on 20 July to settle for 10 weeks' pay although she could not rule out that such an offer may have been made. 106Ms Nixon admitted that it was her decision not to accept Council's offers albeit it was on the advice of the union. 107She denied that the offer to settle for 31 weeks pay, five weeks in lieu of notice, $1900 in back payment for on call allowance and a transfer of her SIM card was made at her request. Ms Nixon insisted that although Mr Golledge had spoken to her about putting forward that offer, it was the USU that had come up with the proposal as a reasonable settlement to throw on the table. She acknowledged that she had not told Mr Golledge not to put forward that offer. She denied that when she was talking to Mr Golledge on 20 July that she became a bit upset, hysterical and hung up on him. Ms Nixon confirmed that Mr Golledge had called to let her know that the offer had been rejected by Council. 108After much prompting, Ms Nixon agreed that Mr Golledge had advised her of Council's counter offer of five weeks made on or about 28 July and confirmed that she had rejected the offer. 109Ms Nixon refused to confirm or deny the offer made by the union on 15 July to settle the matter for two years' pay plus a car; the offer made on 19 August 2011 by the Council to pay her 10 weeks' pay; a counter offer made by the union on or about 19 October of 15 weeks' pay. She claimed that the Union was merely trying to get her the best deal it could and therefore there were some offers she knew nothing about.. She said she had rejected those that she knew about ".... on the grounds that they're not reasonable".. 110It was pointed out to Ms Nixon that despite ticking the box that she was requiring reinstatement to her former position, that relief did not feature in any of the offers that were made on her behalf. She had not once asked for her job back. In response, Ms Nixon reverted to her previous stance that she was unaware of the negotiations held between the union and the Council in relation to her matters. 111Despite lengthy and persistent cross-examination, Ms Nixon refused to deny that she was not actively pursuing reinstatement claiming that her understanding of the negotiations was that the union was trying to have her reinstated in addition to all the other offers. PERIGO. Ms Nixon there is no offer made. Ms Nixon let me put it this way, there is no offer made is there, that has a reinstatement option? COMMISSIONER: It does make sense Ms Nixon stop evading the question. Listen to it and answer it, it has been asked in a number of different ways. WITNESS: Well as far as I'm aware the union delegates that were representing me told me that they had negotiations and spoke about reinstatement. ..... Q. In terms of these proceedings in this Commission, and this application, you weren't actively seeking compensation either, were you? A. I was seeking compensation, but because of the, you know, -- Q. Ms Nixon you walked away with absolutely nothing, didn't you? A. Yes. Q. So Ms Nixon if you weren't actively pursuing reinstatement and you weren't actively pursuing compensation then the proceedings must have been brought for some other reasons mustn't they, such as to embarrass the council? A. No. Q. To cause the council inconvenience? A. No. Q. Or to cause the council expense? A. No. 112Ms Nixon repeatedly stated that she did not know Mr Paul Wesley and therefore could not say whether or not he was suggesting in his submissions to Connor C, on 2 November 2011, that the Council's offer was reasonable or otherwise. 113In re-examination of herself, Ms Nixon summed up her position as follows: A. Basically the negotiations and every single conversation in relation to all of the different dates that were mentioned I was only informed of snippets or you know, I didn't know the whole content of different conversations I was certainly told that it was in relation to getting my job back, the conversation, and I accepted that from the people that were negotiating with council and that the conciliation dates and all the different dates that were set I do live five hours away and I was told that they would handle it that they would look after it on my behalf you know that they would go for it, you know. And that I left all the negotiations basically up to the union they have the experience and know what to do, and that it was not my intention of anything else except for to get my job back and if that wasn't possible for remuneration and it just did not and could not be negotiated at all. 114At the conclusion of her evidence, and in response to a question from the Commission, Ms Nixon confirmed that, as delegate, she was conversant with union affairs and industrial rights and was aware that she could appear before the Commission via teleconference. It was put to her that throughout the hearing no mention had been made that she had attempted to chase up the union herself proposing instead that the union sometimes took days or weeks to get back to her after a conciliation conference to advise her of the outcome. Ms Nixon, for the first time indicated that she would call the union, and in particular Mr Greg Golledge who conducted the negotiations in the latter part, to find out the outcome of the conferences: A. Yeah I used to ask that, like when they had negotiations or conciliations I would try and get in contact with Greg Golledge and did a lot of the negotiations in the latter part, and I would ring up immediately like straight away if he told me you know, I'm going to be doing this or whatever and I did follow up and try and ask you know what was happening with all my negotiations all the time. I am a single mother, I had no job. I had no job no money, I was like speaking or ringing constantly.

[7]

SUBMISSIONS 115The submissions made by the parties are summarised below. It is noted that the Council prepared written submissions which were provided to the Commission and to Ms Nixon on or about 25 January 2012. Ms Perigo also provided supplementary written submissions and made brief oral submissions at the hearing. 116Ms Perigo reiterated that the order the Council is seeking is one for ordinary costs, as agreed or assessed, in favour of the Council. In addition, if the Commission finds that there are grounds for awarding indemnity costs then that is a matter for the discretion of the Commission. 117It was submitted by Ms Perigo that the process does not involve a trial of the merits of the dismissal itself. Rather, it involves only evidence and submissions in relation to the costs application itself. In that respect, the Council relied on the judgment of McHugh J in the High Court decision in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624 where his honour considered an application for costs where there had not been a hearing on the merits of the application: ... it is first necessary to state the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means. In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the jurisdiction. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.... [emphasis added] 118That decision has been cited with approval in a number of other authorities: In Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors. [2003] NSWCA 302, Davies AJA, with whom Mason P and Meagher JA agreed, held at [5]; When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs... [emphasis added] In One Tel Ltd & ors. v Commissioner of Taxation (2000) 101 FCR 548, Burchett J made the same point in the following terms [at 552-553]; It is accepted that, in a case which terminates before there has been a hearing, the court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial:.... But this does not mean that the Court can never make an order for costs. Often, it will be unable to do so; but in other cases an examination of the reasonableness of the conduct of the parties, respectively, may provide the basis of an order, or "a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter has been fully tried", as McHugh J put it in Ex parte Lai Qin.... [emphasis added] Further, in Gribbles Pathology Pty Ltd v Health Insurance Commission & Ors. (1997) 80 FCR 284; Finkelstein J stated that: For my part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case... So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. In Australian Securities Commission v Aust-Home Investments Limited & ors. (1993) 44 FCR 194) Hill J reviewed all of the authorities existing at the time of his decision: These cases seem to me to support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order:... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial:... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them:.... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation:.... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that that interlocutory relief has been granted:.... Finally, in Frost v The Speaker of the Legislative Assembly of New South Wales (No 2) [2001] NSWIRComm 14, a case involving a claim for costs following the discontinuance of a notice of motion to intervene in unfair contract proceedings, Hungerford J followed the reasoning in Ex parte Lai Qin in considering whether the Applicant on the notice of motion acted reasonably in bringing the motion for intervention and the manner in which he pursued it, including the circumstances in which it was discontinued. 119Ms Perigo felt obliged to draw to the Commission's attention other authorities which went against those propositions: In Saddington v Oliver and Others (1993) 43 FCR 545 heard in the Industrial Relations Court of Australia, Gray J, in proceedings pursuant to section 347 of the Industrial Relations Act 1988 (Cth), as it then was, stated in a case that had not been taken to its finality: In a case involving disputed questions of fact, it is simply not possible to determine whether the proceeding was instituted vexatiously or without reasonable cause unless the matter is tried. 120Ms Perigo acknowledged that, unlike other cases heard by the Commission in relation to costs, there has not been a determination made of the merits of the claim. Nevertheless, while it is a difficult task, and sometimes near possible task, it is not unusual to test the reasonableness or otherwise of the parties in these proceedings and the actions they took. 121Ms Perigo acknowledged that the offers made by the parties were intended to be in full settlement of both the victimisation and the unfair dismissal applications yet the costs application brought by Council was only in relation to the Unfair Dismissal application. Nevertheless, the two applications had "travelled together" before the Commission:

[8]

CONSIDERATION 143The Commission is required to make a determination as to whether, in its opinion, Ms Nixon unreasonably failed to agree to a settlement of the claim or whether her application was frivolous or vexatious or both. 144Ms Nixon's defence throughout these proceedings has been that:

she was not the applicant in the s 84 proceedings;
she had not attended the various listings of the matter on advice from the USU and because the USU was the applicant;
she was not advised of the offers made on her behalf; and
she was not advised of the counter-offers made to her by Council.

[9]

Identity of the Applicant 145Ms Nixon made out that she had not asked the USU for assistance when her job at Council was at risk and she was under threat of dismissal. She attempted to make out that the USU involved itself once it knew she had issues with the Council. 146Ms Nixon was very evasive in her responses to questions posed during cross-examination. She had, deliberately in my opinion, avoided answering questions she was being asked in cross-examination laying everything at the feet of the USU as though she had played absolutely no part in the whole matter. Despite having been a union delegate, she insisted that the members pay their subscriptions and generally accept whatever advice they get from the union and the union "runs the show". 147Despite her protestations, it was obvious from her evidence as set out above, nevertheless, that she had been represented by the USU in negotiations with Council pre her dismissal; the representation continued post her dismissal; she kept the USU informed of what was occurring at all times; she was "pretty sure [she] told them what [she] wanted"; and she had been consulted in the preparation of the section 84 application. and thereafter. 148Ms Nixon reluctantly admitted that her name was inserted in the space allocated to the "Applicant" in the s 84 application. Ms Nixon acknowledged that Question 29 in the s 84 application sought a response to the question as to whether the Applicant is represented. The Yes box had been ticked. Ms Nixon also acknowledged that Question 30 asked the Applicant to specify by whom the Applicant was represented. The box alongside "Union" had been ticked. Unrepresented applicants are required to complete and sign a statutory declaration attached to the form. It is noted that the declaration was not completed and signed by Ms Nixon. It was signed by Mr Oppitz in the space allocated to the "Applicant's representative". Ms Nixon would have been aware of all of the above because she attached a copy of the application to her letter of 23 February 2012 in relation to the costs proceedings. 149On 28 October 2011, correspondence was received from Ms Nixon addressed directly to Commissioners Tabbaa and Connor in which she advised as follows: This correspondence is to notify you both that I have instructed the USU (United Services Union) not to act on my behalf anymore. I have taken the matters of medical privacy, unfair dismissal and victimisation to a civil claim and to the Medical Privacy Tribunal. You both may be required to give evidence in relation to your actions relating to these matters. The above clearly identifies that the USU was, up until 28 October 2011, acting on behalf of Ms Nixon with her consent. Connor C noted, rightly in my opinion, that the contents of the body of the letter forwarded to the Commission by Ms Nixon evinced a clear intention that she, as the applicant, no longer wished to pursue either of the matters before this Commission and, on that basis, dismissed both applications while reserving the rights of the Council as to costs. 150Even without the advantage of having the union officials give evidence, the actions taken by the Union officials clearly demonstrate that, in the Union's view, Ms Nixon was the Applicant in the proceedings. If the USU was indeed the Applicant in the proceedings all it needed to do was apply to discontinue the proceedings. Instead, the USU filed a notice of Ceasing to Act on 28 October 2011 advising that the Union has ceased to act .... for the applicant. The Union has served on the Applicant notice of the Union's intention to file this notice. The Applicant's place of abode last known to me is (address of Ms Nixon provided). 151There can be no doubt that Ms Nixon was the Applicant in the s 84 proceedings and I find accordingly. 152Ms Nixon, despite sacking the union, and being aware of the proceedings on 2 November 2011, did not attend the proceedings nor did she ask for the proceedings to be conducted by teleconference. It is noted that prior to granting leave to the USU to withdraw from the proceedings, Connor C paused the proceedings while the Court Monitor went to call Ms Nixon's name three times outside the courtroom to confirm that she was not intending to attend the proceedings.

[10]

Attendance at Commission proceedings 153At proceedings before me on 11 August 2011, Ms Nixon was not present either in person or via teleconference. On being questioned by the Commissioner about her absence, the USU representative responded: OPPITZ: ...Ms Nixon is not here today, she is caring for her uncle in Berridale and advised the Commission that the union has been instructed on Ms Nixon's position. 154At proceedings before me on 18 August 2011, once again Ms Nixon was not present either in person or via teleconference. 155At the 23 September 2011 proceedings before me Ms Nixon was not present either in person or via teleconference. Mr Oppitz recorded that a witness statement had been obtained from Ms Nixon and had been filed and served in relation to both matters. In order for Ms Nixon to have provided a witness statement, she would have had to be aware that conciliation proceedings were unsuccessful and the matter was being prepared for arbitration. 156The transcript of the proceedings before Connor C in Wollongong on 24 October 2011 confirms that Ms Nixon was aware of the proceedings but was unable to attend: WESLEY: My understanding is that because she's in an institution she's been advised that she needs to have her mobile phone off, so directly contactable, no. I have made arrangements, and had discussions with our organiser, Mr Rudi Oppitz, and basically the determination is - regardless of whether we're able to contact our member or not through the proceedings this morning, - we will have a determination one way or another, or a position one [way] or another, after the benefit of your conciliation today. Our member has been made aware of that. It is noted that Mr Williamson objected to her absence on that occasion: WILLIAMSON: .... I would have reasonably expected Mrs Nixon to be here. It's not the first time this has happened and we would say that through the course of the reasons that led to her termination, her inability to face matters was one of the issues that caused the parties to be where they are. So at this stage I'd just like to have noted our protest. 157An email was forwarded to Ms Nixon by Registry staff on 16 November 2011 advising of the listing of the Notice of Motions on 18 November 2011 and seeking a contact telephone number from her for the teleconference to be held on that date. In addition, a notice of the listing was forwarded to Ms Nixon by post. Yet, no appearance was entered by, or on behalf of, Ms Nixon on 18 November 2011. No contact was made by Ms Nixon with the Registry. Mr Williamson advised that the Council had incurred costs of approximately $30,000 in legal fees since the offer of 10 weeks' pay was made to, and rejected by, Ms Nixon - that is, the period from 19 August 2011 to 18 November 2011. The Commissioner issued directions which included that a copy of the transcript of 18 November 2011 should be forwarded to Ms Nixon in order that she fully comprehend the extent of the case being brought against her as outlined by Mr Williamson. 158In response to a question from the Commissioner, Ms Nixon confirmed that, as delegate, she was conversant with union issues and industrial rights and, more importantly, was aware that should could have appeared in proceedings via teleconference. 159There is no doubt from the evidence that Ms Nixon demonstrated a distinct lack of interest in attending the proceedings and that she pulled the strings from behind the scenes.

[11]

Proposals and Counter-Proposals 160Ms Nixon refused to confirm or deny the following offers made by the USU to the Council and vice versa in relation to her claim. All were expressed to be in addition to the five weeks' pay she had already received as payment in lieu of notice. She agreed that she had rejected all offers: USU: 15 July 2011 two years' pay plus a motor vehicle Council: 20 July 2011 10 weeks' pay USU: 18 July 2011 31 weeks' redundancy payment (approx. $41,000 paid as a lump sum payment) USU: 19 July 2011 40 weeks' pay Council: 20 July 2011 10 weeks' pay USU: 20 July 2011 31 weeks' pay plus $1900 back payment of an on-call allowance and transfer of her SIM card Council: 25 July 2011 Five weeks' pay Williamson: 2 August 2011 If Nixon made an offer to settle for seven weeks' pay will be prepared to recommend its acceptance to Council. Council: 19 August 2011 10 weeks' pay ($14,041.00) USU: 19 October 2011 15 weeks' pay Council: 24 October 2011 Seven weeks' pay

[12]

161During cross-examination, Ms Nixon had grudgingly admitted to telephone calls from both Mr Oppitz and Mr Golledge who kept her abreast of the outcome of negotiations and the conciliation conferences. 162She denied any knowledge of the offer made on her behalf to settle for 31 weeks' pay. Nevertheless, the fact that the USU asked that a condition of settlement include a transfer of her SIM is quite telling. The Union, in my opinion, would not have drawn up such a settlement without input from Ms Nixon. The same would apply in relation to offers containing a requirement that Ms Nixon keep her Council vehicle. 163As indicated earlier, Ms Nixon had possession of the Council's witness statements since 27 January 2012 as well as Counsel's submissions in relation to the Notice of Motion. Ms Nixon voluntarily informed the Council during the proceedings that she was still "friends" with the USU officials. Yet Ms Nixon took no steps to call on the USU officials, or summon them, to attend to attest to the fact that she was not aware of the negotiations conducted on her behalf. She chose not to do so. 164Conciliation proceedings were conducted in private conference and, at the conclusion of those proceedings on 24 October 2011, Connor C recorded as follows: In the circumstances there's been some discussions and a proposal advanced on behalf of the council for the consideration of Ms Nixon and of the USU. I have to say in the circumstances, bearing in mind this matter I would ask that Ms Nixon give some very serious consideration to this. I will adjourn these proceedings and allow the process to continue before me on 2 November 2011 at 10.30 am. At that time I will hear from the parties whether the offer is accepted or not, ..... 165At a report back before Connor C in Wollongong on 2 November 2011, the Commissioner asked Mr Paul Wesley of the USU to confirm the status of the offer made by Council. Mr Wesley advised: WESLEY: Yes, that's correct. We put the offer to Ms Nixon by telephone on 25 October. In a telephone conversation I had with our organiser, Mr Rudi Oppitz, on 26 October he reported back to me that Wendy Nixon had decided to decline the offer to settle. further to that I had discussions with our manager of Legal and Industrial, and we determined that we would proceed to cease to act as the agent for Ms Nixon. By registered mail on Friday, 28 October, we informed Ms Nixon of that particular situation. 166Once again, Ms Nixon was aware of the above since 27 March 2012 and chose not to call evidence to refute her knowledge of the offer or, indeed her alleged stated rejection of the offer. 167Ms Nixon participated in proceedings on 21 March 2012 via teleconference. The Respondent put on record that it wished to insure the additional costs in relation to the witnesses Ms Nixon wished to call, namely the Mayor and the General Manager of the Council. The Commission, as currently constituted, took great pains to explain to Ms Nixon what case she was required to respond to in the costs application. The Commissioner also ensured, in issuing directions, that Ms Nixon had sufficient time to prepare for the proceedings. 168At the hearing held on 18 July 2012 in Queanbeyan, Ms Nixon was unrepresented. She had not called any evidence from the Union. She had not provided a statement in response to the allegations made by Council witnesses in their statements. 169Despite the Commission informing Ms Nixon of what was required of her during the arbitration proceedings, she had not prepared questions for the witnesses despite having the Council's witness statements since 27 January 2012. For its part, Council had incurred extensive costs in briefing Counsel who was briefed by Solicitors. 170Of deep concern to the Commission was Ms Nixon's insistence on calling the Mayor to give evidence in the proceedings on the basis that he was a major witness who would assist her case. As it turned out, Mr Cahill was called to be questioned on issues not related to the costs issue and even the unfair dismissal proceedings. Mr Cahill was called to be questioned on matters that would cause embarrassment for the Council and would cause damage to his relationship with the General Manager. It is noted that the hearing was held approximately four weeks prior to the next Council elections. I accept the evidence of Mr Cahill that the "off the record" discussions he had were with an USU official and were held after his visit to Ms Nixon's home. It appears that Ms Nixon had included those off the record discussions as discussions held with her on an earlier date at her home. 171The Commissioner took great pains to explain to Ms Nixon what she was required to prove to defend the costs claim. Yet it was only in submissions from the bar table that she advised that she had been unable to attend the s 84 proceedings because she had been suffering from severe depression, anxiety and stress resulting from her employment with Council. Her USU representatives had not advised the Commission of that fact when her non-attendance was questioned at the various proceedings. Neither had she provided that evidence when she was on oath so that the Council can test it. In addition, there was no medical evidence attesting to that contention. 172Finally, Ms Nixon pointed out that she had withdrawn the proceedings because she was exhausted and mentally could not cope with it any more. If that was the case, then one would think that she would have accepted the last offer made to her rather than settle for nothing. In any event, she went on in the next breath to say that she was removing the matters to other jurisdictions because of the 26 week cap on unfair dismissal claims. Her actions betray the fact that she said she was too exhausted and mentally could no longer cope with litigation. 173I accept that Ms Nixon was an evasive witness and deliberately wove around the questions put to her in cross-examination to avoid providing evidence which would run contrary to her contentions. 174The authorities provided by Ms Perigo have been noted and are relevant to the present proceedings. 175I find, based on all of the above, that Ms Nixon was the Applicant in the proceedings, Ms Nixon did not actively seek a settlement to her claim whether in the form of reinstatement or monetary compensation. It is blatantly obvious from the evidence that she used her knowledge as Union delegate to intentionally cause monetary loss to the Respondent in the form of legal costs. 176On 24 October 2011, Connor C advised that the Applicant give strong consideration to the offer that was put to her arising from a private conference of the parties on that occasion. 177On 2 November 2011, the USU representative, declared before Connor C that the Union believed that the offer was reasonable and was ceasing to act as a result of Ms Nixon's refusal to accept it. 178Having said that, it is very difficult to determine the quantum of the costs bearing in mind the fact that the victimisation case was being run in tandem with the unfair dismissal case, the latter having a jurisdictional limit of 26 weeks. In addition, the Commission has not heard the merits of the Unfair Dismissal application. When the General Manager made the comment about the worst case scenario in the Industrial Commission being 26 weeks, he was referring to the unfair dismissal claim yet negotiations were being in relation to both matters. 179I find therefore that Ms Nixon unreasonably failed to agree to a settlement of the claim. 180In addition, based on all of the above, I find that Ms Nixon's unfair dismissal claim was both frivolous and vexatious. 181I propose, nevertheless, to halve the costs so that the legal costs borne by Council are share equally between the victimisation application and the unfair dismissal application. I accept that the identical witness statements and documentation applied to both cases and it would have been difficult to separate them but note that the relief applicable to each would have been provided separately if the applications had been successful. 182I do not intend to grant indemnity costs in the matter.

[13]

DECISION 183Half of the costs of Snowy River Shire Council of, and incidental to, the proceedings relating to the unfair dismissal application and the said notice of motion incurred after 3 August 2011 shall be paid by Ms Wendy Nixon in an amount as agreed or as assessed. 184The payment is to be made to Council within 28 days of this decision. 185The matter is concluded.

[14]

Amendments 14 January 2013 - The year "2012" amended to now read as "2011". Amended paragraphs: 46, 165, 176, 177 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. Decision last updated: 14 January 2013

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624; Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)