Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union

Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union - [2008] NSWIRComm 228 - NSWIRComm 2008 case summary — Zoe

[9]

1 These proceedings, commenced in September 2007, were brought under s 106 of the Industrial Relations Act 1996 ('the Act'). Mr Veney complains about the alleged unfairness of his former contract of employment with the respondent, in relation to notice of termination, redundancy pay, payout of accumulated sick leave and the reimbursement of legal costs. The application follows earlier proceedings brought by Mr Veney under s 84 of the Act, in relation to the termination of his employment. That application was dealt with by Commissioner Murphy, who concluded that Mr Veney's dismissal had been 'harsh unreasonable and unjust on the basis of a flawed suspension process' and that reinstatement was impracticable. The Commissioner ordered money compensation of 20 weeks' pay. (See Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1047.) Neither party appealed the decision and the compensation has been paid. 2 This judgment deals with an amended notice of motion filed by the respondent in September 2008, after the conciliation in these proceedings failed to produce any agreement. The motion seeks a declaration that the Court has no jurisdiction to hear or determine the claims advanced, given the operation of s 109A of the Act. In the alternative, the Court is asked to set the proceedings aside, or to stay them, as an abuse of process. In the further alternative, orders striking out, or setting aside aspects of the claims advanced were sought. 3 In essence, the respondent's complaint was that the summons seeks to revisit matters already litigated between the parties in the s 84 proceedings, or which ought to have been there litigated. In addition to the s 109A point, both issue estoppel and Anshun estoppel was said to arise and that principles of comity, or legal coherence, also operated so as to require the applicant to make an election between the claims advanced as to costs in the proceedings brought under s 84 of the Act, or those brought under s 106. 4 The applicant's case was that the proceedings brought under s 84 concerned the unfairness of his dismissal, while in these proceedings the relief sought concerned unfair terms of his contract of employment. In the s 84 proceedings, orders of compensation had been made in relation to the dismissal found to have been unfair. No issue or Anshun estoppel arose in these proceedings, from any of the conclusions and orders made in the s 84 proceedings. Nor was the application for orders in this case precluded by s 109A of the Act. 5 It was, in any event, too early a stage of the proceedings to determine the issues raised in the motion.

[14]

[45] The Full Bench in Beahan held that where a claim challenges the terms or operation of a contract of employment by genuine, not superficial or coloured, reasons related to the contract itself, then it is a claim properly within s 106 and s 109A has no operation in relation to it (at 692; 42). Importantly, however, the Full Bench also held (at 664; 14) that s 109A is to be construed strictly so as to remove from s 106 only those contracts which unambiguously fall within the exclusion provided by its provisions. 9 The respondent particularly relied upon what was said by the President, Justice Boland, in Balsdon v Murray Irrigation [2003] NSWIRComm 251. There his Honour had to consider the situation of an employee dismissed on grounds of gross misconduct, who later commenced s 106 proceedings. The orders sought included orders of variation as to how complaints into the applicant's conduct would be investigated prior to dismissal; a two year roll over of the contract, unless the applicant was made redundant; an order restoring the applicant to his former employment and money orders for the intervening period. At [31] Boland J concluded that the summons did not reflect 'a genuine challenge to the terms of the contract' and concluded at [36]: 36 I have come to the conclusion for the reasons expressed above that Mr Balsdon's claim has all the hallmarks of an unfair dismissal claim and, in my opinion, should be treated as such. I find that the Court does not have jurisdiction to entertain Mr Balsdon's claim for the reason that pursuant to s 109A of the Act the claim could have been made under Ch 2 Pt 6 (Unfair dismissals) of the Act. Indeed, initially Mr Balsdon did lodge an unfair dismissal application but discontinued the claim. No reason was given for discontinuing but I note that MIL had contended Mr Balsdon was excluded from the Commission's unfair dismissal jurisdiction by virtue of the operation s 83(1)(b) of the Act because his conditions of employment were not set by an industrial instrument and his annual remuneration exceeded the relevant amount prescribed by the regulations.

[18]

SUMMARY/CONCLUSION 337 Mr Veney's long employment with the union was far from unblemished, being characterised by a series of generally well-grounded formal warnings. 338 His more recent behaviour displaying defiance of management initiatives, particularly in the 18th July assessment interview, understandably attracted the anger of senior officers, concerned with strategy to meet the WorkChoices challenge to union power. He received further strongly worded warnings, accompanied by a series of counselling sessions throughout August, 2006 involving senior officers of the union. His apologies given at the time, or at least the earlier ones, were marred to an extent by a degree of hedging or qualification, and were therefore not well received, especially by Mr Want and Mr Hughes. He eventually appeared to offer unqualified contrition but there was evidence that at all the conferences in August, his demeanour and apparent attitude left some of those present with the impression that he did not genuinely recognise any fault. His evidence of reconciling his claim of not being at fault, with the fact that he did apologise - "I was apologising because I was required to apologise and I genuinely wanted to apologise for upsetting people" - did not explain the conflict in his stance. 339 This left the Commission satisfied that the three warnings given to him were not simply a ploy to hasten his departure, but by the same token the Commission was not able to give the same power to the "final, final" warning given to him on 31st August, 2006, as attributed by Ms Nomchong. 340 The crucial meeting of 13th September, which resulted in his suspension and recommendation for dismissal by the then General Secretary, Mr Harris, was found to have been blighted by a repeat of disrespectful behaviour towards management seeking an explanation as to his activities over the previous four to five weeks, following a complaint from Warringah Council delegates that he had not visited them since taking over as organiser. The Commission found that recalcitrant behaviour at that interview to be established on the evidence of three persons present, despite what was finally judged to be some minor inconsistencies in the respondent's account, especially when compared with the flaws found in sections of the applicant's evidentiary approach. 341 However, whilst the applicant was found to have effectively provoked his own suspension, the Commission has had to be open to the strong claim by Mr Moorhouse that the applicant was also effectively ambushed, even though this may not have been intended by those claiming to have simply sought to interview him about a serious complaint just received from Warringah delegates. The inescapable conclusion from the lack of notice as to the nature of the meeting was the likelihood of significant prejudice to the applicant's ability to explain and defend himself. Even though a disciplinary interview as such was not intended, the result was just that, although the applicant was not justified in reverting to type in his responses, which he himself admitted were annoying to Mr Harris at the time. 342 Having regard to major precedents referred to me by Counsel, the Commission has accepted the paramountcy of the employer's obligation to provide procedural fairness in this situation confronting Mr Harris, who had other options available. But the applicant's contribution to his own fate at that conference was a matter to be taken into account in the question of remedy, along with the applicant's obdurate position, in effectively turning his back on the opportunity to influence the Executive's decision on Mr Harris' recommendation for his termination on the 18th September, 2006. 343 The Commission has not accepted that the 18th September decision was procedurally flawed on the basis of Mr Moorhouse's submission as to: (i) The broad range of the recommendation to it; or (ii) The refusal to grant the belated request by Mr Veney's lawyers to delay the decision; or (iii) That his resulting dismissal robbed him of the opportunity of obtaining injunctive relief through his Threatened Dismissal application already filed. The applicant's actions were understandably seen as a simple delaying tactic and arrived too late to be respected, as well as being likely to have robbed the respondent of its own opportunity of controlling the situation on its terms. Ms Nomchong's submission that he could have phoned the likes of Mr Harris and Mr Kruse, would have been a reasonable thing for him to do, from Thursday onwards over the weekend. 344 The applicant was found to have passed up a tangible opportunity, albeit brief, to influence the Executive's decision, which was the second phase of termination, although crucial to the respondent's process and which he had successfully sought leave to do. 345 That aspect was also to be regarded as a further contribution by Mr Veney to his own demise, to be considered in respect of any remedy available. 346 The earlier procedurally unfair nature of the suspension on 13th September, although needing to be weighed against the applicant's provocative conduct, was apparently not something which occurred to the Executive. They may however have been made more conscious of that shortcoming by Mr Veney had he attended as originally planned and made the sort of representations listed earlier, including the need to be given notice of Mr Harris' range of matters in his recommendation to the Executive. 347 Accordingly, the applicant's dismissal on the 18th September, 2006 has been found to be harsh, unreasonable and unjust on the basis of a flawed suspension process, carried over into his dismissal on 18th September, 2006, and for the reasons stated, should attract the Commission's qualified intervention. 16 As the respondent submitted, the Commissioner makes no reference in his decision to the idea that the true reason for Mr Veney's dismissal was redundancy. This is entirely as the result of a course which Mr Veney decided to take in the s 84 proceedings. The letter of dismissal advised Mr Veney that:

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The Summons was filed due to the 12 month time limit, however I invite you to take no response until the decision in the unfair dismissal case is known because costs may be wasted. 19 There can obviously be no criticism of Mr Veney exercising the rights granted by s 106, if he has them. The limitation period imposed by the Act had to be observed and, if the Commissioner had made the orders which Mr Veney sought in the s 84 proceedings, namely reinstatement, some, at least of the orders sought in the s 106 proceedings would have fallen away. That explains, no doubt, Mr Veney's advice that if he was successful in obtaining reinstatement orders, that he would discontinue the s 106 proceedings. Again, I am unable to accept that Mr Veney may properly be criticised for taking that course. 20 Once the s 106 summons was served, the respondent sought to re-open the s 84 proceedings, filing a notice of motion seeking leave to tender the material which had been served by Mr Veney in the s 106 proceedings. From the respondent's point of view, that was an understandable application, given that in his s 106 summons, Mr Veney sought to advance a claim which he had not made in the s 84 proceedings, namely that the real reason for the dismissal had been redundancy. The respondent wished to argue that what was claimed in the s 106 proceedings was relevant to what the parties had already argued in s 84 proceedings and raised issues going to Mr Veney's credit. 21 The application was opposed by Mr Veney at the hearing before the Commissioner on 15 October. On 19 October, Murphy C refused the leave sought by the respondent, given that further substantial time and costs would flow, if the leave were granted and that there would not be significant prejudice to the respondent, if the leave were refused. (See Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1079.) On 23 October, Murphy C gave his decision, finding that the dismissal was unfair, but refusing to order reinstatement. 22 Despite the argument now advanced for Mr Veney in these proceedings, it cannot be doubted that Mr Veney seeks here to argue that, contrary to the conclusions which the Commissioner has reached, as to reason for the dismissal, the real reason was redundancy. The summons seeks in Part A an order that:

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24 In Part D of the summons, the money orders sought in relation to redundancy amounts to $114,993. 25 Had the claim that the real reason for dismissal was redundancy been ventilated in the s 84 proceedings, it would plainly have been relevant to what the Commissioner was there called on to determine, namely whether or not the decision to dismiss Mr Veney was 'harsh, unreasonable or unjust'. Had Mr Veney succeeded in establishing that he was dismissed in circumstances of redundancy, the prospect of a reinstatement order being made, would undoubtedly have been diminished. That was what Mr Veney sought in the s 84 proceedings, understandably, given the evidence led as to the considerable consequences of his dismissal upon his superannuation and sick leave entitlements. Nevertheless, Mr Veney was cross examined as to what he understood the reasons for his dismissal to have been. He was obliged to answer that question honestly. Given the claim made in the s 106 proceedings, the summons supported as it was by an affidavit in support sworn by Mr Veney, that Mr Veney was not forthcoming as he ought to have been, in the s 84 proceedings, in relation to a belief that the true reason for his dismissal was redundancy, cannot be open to doubt. 26 Had that issue been ventilated in the s 84 proceedings, undoubtedly, the Commissioner could not have ordered the respondent to pay Mr Veney his contractual entitlements to redundancy pay, if he had found that was the true reason for the dismissal. The provisions of s 380 of the Act limit orders which can be made in such proceedings by the small claims process established by s 379 of the Act. Mr Veney would, by that decision, however, have unarguably established his right to such a redundancy payment in accordance with his contract. 27 What Mr Veney was not entitled to do was to advance one reason as the true reason for his dismissal in the s 84 proceedings and another, in these proceedings. 28 In this case, the claim that in truth Mr Veney was dismissed on account of redundancy, can only be established upon an evidentiary case being run, which will not only seek to advance a different reason for the dismissal to that advanced by the respondent in the s 84 proceedings, but also a different reason to that advanced by Mr Veney in those proceedings and the view reached by Commissioner Murphy. 29 I am satisfied that s 109A does not permit such an approach. Clearly, a claim that the true reason for his dismissal was redundancy, was a claim which Mr Veney could and ought to have advanced in the s 84 proceedings. He was not entitled to reserve that claim to be argued in these proceedings. Section 109A makes it clear that s 106 proceedings may not be brought in relation to a contract of employment that is alleged to be an unfair contract for any reason for which an application has been or could have been made in s 84 proceedings. 30 If, in truth, the reasons for the dismissal had been redundancy as Mr Veney now seeks to claim, rather than the reason advanced by the respondent on Mr Veney's dismissal and the view put forward by Mr Veney in the s 84 proceedings, Mr Veney ought to have pursued that claim in the s 84 proceedings. If true, that would undoubtedly have demonstrated the unfairness of the dismissal and would have established, beyond question, that Mr Veney was entitled to the money orders which he now pursues in these proceedings in relation to redundancy. In his submissions, Mr Boyce confirmed that the money orders sought in Part D(b) of the summons reflects a calculation based on Mr Veney's existing contractual right to redundancy pay, calculated on the basis of three weeks' pay per year of service. 31 So seen, the claim is, in reality, a claim for enforcement of a contractual right. The argument that a proper characterisation of the claim advanced in these proceedings is that it is not truly a redundancy claim, but rather, a variation of the contract seeking a payment to be made in any circumstances other than dismissal for serious misconduct, pays no proper attention to what is advanced in Part B of the summons, or indeed to how the order in Part A is couched by reference to the position being 'surplus to the Respondent's operational needs' and/or the position not having been 'replaced for at least 6 months after termination'. On any ordinary definition, that is a redundancy. 32 The authorities require that the Court take account of the substance, not the form of any claim advanced. In this case it must be concluded that in reality, the order sought is concerned with redundancy pay flowing from a termination on account of redundancy, in circumstances where the reason for the decision to dismiss has already been litigated between the same parties on other grounds in the s 84 proceedings. As such the claim is precluded by s 109A, it being a claim which goes to the reason for the decision to dismiss, not the fairness of the termination provisions of the contract. 33 The approach which Mr Veney has sought to adopt is also clearly not available on other grounds, given that it also undoubtedly gives rise to an Anshun estoppel point, or issue estoppel. 34 For Mr Veney, reliance was placed on what Dixon J observed in Blair and Ors v Curran and Ors (1939) 62 CLR 464 at 531-2:

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28 However, Lord Bingham counselled that care needs to taken in applying the principle. It is necessary to consider all of the circumstances of the proceedings including the circumstances of the litigants. At 30 - 1 his Lordship said: "It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v. Henderson : A new approach to successive civil actions arising from the same factual matter," 19 Civil Justice Quarterly, (July 2000), page 287), that what is now taken to be the rule in Henderson v. Henderson , has diverged from the ruling which Wigram V.-C. made, which was addressed to res judicata. But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

[65]

348 The Commission has taken into account the submissions of the respondent in respect of the applicant's efforts to achieve other employment and whilst he might have broadened his basis for applying for positions, the Commission cannot find the same level of fault as urged by Ms Nomchong. It is understandable, as explained in his oral evidence, that he sought employment in the Local Government sector, so as to pick up on his superannuation accumulated benefits. His earnings since dismissal were shown to be minimal in comparison to his overall loss. 349 The unusual difficulty for the applicant, given his age and background as a union official over eighteen years, has also been taken into account by me. The detriment to his superannuation, although not accepted as a mathematical exercise for me, is a relevant consideration and I have been comfortable in not needing to argue against the more generous calculation of his superannuation, by expert witness, Mr Martin Stevenson, for the reasons identified by Mr Moorhouse. On that basis I have not had to agree or disagree with his logic as to the more likely loss and also as to why it should not be held against Mr Veney, that he chose not to take out maximum benefits on the basis that he had the choice of doing so towards the close of his career. 350 The important question of the primary remedy of reinstatement or re-employment claimed by Mr Veney has had to be considered by me with unusual care, even though I have arrived at a finding that Mr Veney must take some significant responsibility for both his suspension and his later dismissal because of his own actions and lack of action. The contributory factor has weighed heavily when deciding that, even if his own provocative conduct and his failure to exercise his right to plead on 18th September, 2006, were not so important, there is still the issue of his behaviour both before and after dismissal which must count against a practical re-establishment of the relationship, which I have separately assessed on the question of remedy. 351 I have preferred Mr Kruse's evidence that the applicant, after his dismissal, offered a distasteful threat to gain sponsorship from forces unfriendly to the union movement and that he made derogatory comments as to the "brand of unionism" in a job application to Woollahra Council. Both instances were a significant barrier to restoration, especially when combined with the ample evidence that the applicant was found not to be a team player throughout his career and the applicant's denials of this did not suffice against several clear indicators of being difficult to manage. Mr Donley, who would be his supervisor, was uncomfortable with a reinstatement. This problem became readily apparent, especially with the changes to skills assessment and training proposed to counter the seismic shift in the industrial relations scene through the WorkChoices legislation, which threatened the union's viability. 352 Whilst Mr Harris had left the union shortly after the applicant's dismissal, there were several senior officers involved in his disciplinary process, who would have to contend with Mr Veney's return. He was found to be too much in denial on a variety of occasions and reinstatement might well lead him to believe that he could continue in a challenging manner to any attempt at supervision, although to adopt Ms Nomchong's description of him being likely to consider himself as "bullet proof", overlooks that it is unlikely that anyone having been dismissed once, would relish a return trip. Related to this aspect, he was found to be unwilling or unable to recognise his defiant conduct when he provoked his own suspension and unreasonably declined the opportunity to convince the Executive not to dismiss him in favour of a dubious tactic of delay. 353 Also relevant to the question of practicality is that the position occupied by Mr Veney of organiser is a strategic position within the union with an increasing rate of interaction with dispute litigation and, combined with the greater risks for union activities under Federal legislation of 2006, including substantial fines, the question arises as to whether the union should not be able to ensure greater control over the conduct of its organisers. 354 The decision of His Honour, Mr Justice Sheldon in the landmark case of Loty and Holloway Vs Australian Workers Union, 1971 AR @95 is relevant to this point. Although there have been many more recent authorities generally to draw upon on the question of practicality of reinstatement, the comments of His Honour upon the role of the industrial officer, (a position occupied by Mr Loty) spring to mind as being apposite to Mr Veney's role of organiser. There at page 109 His Honour commenced: "Industrial representation in many instances is not a matter of speaking from a textbook or a prepared brief. Particularly in conciliation proceedings, where usually no legal representation is used, problems may arise instantly which can be best handled by an advocate whose ear is sympathetically turned to current union policies. The whole job requires close collaboration and mutual confidence between the representative and those controlling the union and it is plain that in these respects the present executive is entitled to decide that Mr Rutherford is more suitable than Mr Loty." 355 The Commission has had regard to the alternate arguments launched by Mr Moorhouse, referring as he asked me to do to caselaw, especially Perkins Vs Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186, where the important logic was applied of normally being able to overcome difficulties, often of the employer's own making, in the restoration of work relationships. The decision of the Full Bench of this Commission in Youssef and Western Sydney Area Health Service in Matter No IRC 1097 of 2002 was also amongst the cases in the area of practicality of reinstatement and whilst that decision and others referred to by Mr Moorhouse offer good reasons for putting aside the predictable objections of employers to reinstatement, the case at hand throws up distinguishing factors. 356 In this case the Commission has been less than confident in the practicality of restoring Mr Veney to his place in the union without undue risk. 357 Accordingly, monetary compensation is appropriate and this should reflect the factors earlier stated pertaining to what might be colloquially called the contributory negligence of the applicant in his own dismissal and going to the degree of unfairness, which, apart from being consistent with the need to measure what compensation is due, is also in line with Section 88 Subsection (f), which requires the Commission to take into account, "such other matters as the Commission considers relevant". 358 The Commission has noted the details of Mr Veney's remuneration package outlined in Mr Moorhouse's final submissions, along with the brief reply by Ms Nomchong to the effect that the Commission has no jurisdiction to make an order under Section 89(6) in the absence of proper evidence as to all aspects of his remuneration. 359 In fact, there is really only insufficient evidence of the benefit to him in respect to the private use of the motor vehicle issued to him, which was apparently a Ford Falcon and Mr Moorhouse asked the Commission to adopt a figure of $3,000 p.a. as a conservative estimate of the value of the benefit to him, and taking account of the fact that he had the use of the vehicle to and from his place of work. 360 I have been concerned to ensure that a just level of remuneration is applied to the Orders I make under Section 89(6), especially given the time and cost involved in the pursuit of evidence in respect of a broad range of topics throughout this case. I have therefore traversed several of the cases as to the calculation of remuneration, beginning with the one referred to me on the point by Mr Moorhouse of Fightvision Pty Ltd Vs. Onisforou and others; Tszyu Vs Fightvision Pty Ltd and Another [1999] NSW CA 323 which held, inter alia: "In the assessment of contractual and tortuous damages based on future hypothetical events, there should not be a finding on the balance of probabilities leading to those events being treated as certain. However, to say that it is more probable than not that something less than that for which the plaintiff contends would have occurred may be a way of allowing for improbables, and therefore be permissible." 361 The assessment of the private use component in the decisions of both the Federal and State Commissions has not infrequently required estimations not founded upon strict record keeping, with the decision given on the basis that the Commission is competent to adopt such figures. The estimate of 10% with a resulting weekly figure of $58 is considered safe and when added to his base rate of $1,162 p.w., plus 9% employer contribution to superannuation, which is $105 p.w. confirms $1,325 p.w. as the fairest basis for orders by the Commission, as claimed by Mr Moorhouse. 41 It is apparent that Murphy C made no reference to the claims or evidence advanced in relation to sick leave, in his assessment of what compensation should be granted. It follows, at best, that they were matters relied on by Mr Veney, to demonstrate the unfairness of his dismissal. 42 In these proceedings, the summons seeks orders in relation to sick leave:

[99]

58 Money orders of some $171,898.30 are sought in Part D of the summons. The money orders being pursued in the s 84 proceedings are somewhat greater. The respondent argued that Mr Veney had to elect in which forum he wished to pursue a claim for the costs of the s 84 proceedings. Further, for reasons of comity, such orders would not be made in these proceedings. 59 I am unable to accept the respondent's arguments. The s 84 proceedings have been litigated. If, in accordance with s 181, the Commissioner comes to the view that the respondent or Mr Veney 'unreasonably failed to agree to a settlement of the claim' or their position in the proceedings was 'frivolous or vexatious', they are entitled to a costs order in their favour, under the statutory scheme. 60 In these proceedings, Mr Veney claims his contract was unfair, because, despite being entitled to the same conditions as other Union members, the respondent failed to arrange for his representation in the s 84 proceedings and otherwise refused to meet the costs of his representation. This is plainly not an application which Mr Veney could have made in the s 84 proceedings. Nor does any kind of estoppel arise in relation to this claim. 61 While the views expressed by Rothman J in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor (2007) NSWLR 198 and that of the Full Bench in Green v Brown (2002) 116 IR 21, might be relied on to resist the claim advanced by Mr Veney, I am satisfied that this is not the appropriate time for the question raised by the respondent, to be determined in these proceedings, given what was said in Nagle. Orders 62 For the reasons given, I order that the orders sought in relation to redundancy pay in paragraphs A2(b) and D(a) of the summons, supported by the matters of fact and law appearing at paragraphs B9, 13 to 15 and 30(a) of the summons, be set aside. Otherwise, the orders sought in the motion are refused. 63 The usual order as to costs is that they should follow the event. In the absence of agreement the parties have liberty to approach as to costs, that liberty is to be exercised within 14 days.

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