Appeal against a decision of the Industrial Magistrate in matter no.  M 152 of 2020 given on 11 June 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2021 WAIRC 00558

DELIVERED : Friday, 29 October 2021

FILE NO. : FBA 4 OF 2021

Appellant

AND

BAKER HUGHES AUSTRALIA PTY LIMITED

ABN:20 004 762 050

Respondent

ON APPEAL FROM:

Jurisdiction : Industrial Magistrates Court

Coram : Industrial Magistrate J Hawkins

Citation : 2021 WAIRC 00160

File No : M 152 of 2020

Catchwords : Industrial law (WA) - Appeal against decision of the Industrial Magistrate - Jurisdiction of Full Bench to hear appeal - Commission not an eligible State or Territory court to exercise jurisdiction under Fair Work Act 2009 (Cth)  – Full Bench has no jurisdiction on an appeal from a decision of the Industrial Magistrates Court exercising jurisdiction under the Fair Work Act 2009 (Cth)  - Power of the Full Bench to award costs - Whether appeal instituted frivolously or vexatiously - Whether appeal constituted a" very rare occasion” where a costs order would be appropriate - Dismissed for want of jurisdiction - Costs awarded

Legislation : Commonwealth Constitution s 77(iii), s 109

  Fair Work Act 2009 (Cth) s 12, s 44, s 45, s 539, s 539(2), s 565, s 565(1), s 565(1A), s 565(1A)(a), s 565(1B), s 570

  Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)

  Industrial Relations Act 1979 (WA) s 26(1), s 27(1), s 82, s 82(6), s 84, s 84(5)

  Industrial Relations Commission Regulations 2005 (WA) reg 102(3)

  Legal Profession (District Court Appeals) (Contentious Business) Determination 2018

  Legal Profession Act 2008 (WA)

  Magistrate’s Court (Civil Proceedings) Act 2004 (WA)

  National Employment Standards

  Oaths, Affidavits and Statutory Declarations Act 2005 (WA)

Result : Dismissed for want of jurisdiction

Representation:

Counsel:

Appellant : In person

Respondent : Mr J Parkinson of counsel

Solicitors:

Respondent : Kingston Reid

Case(s) referred to in reasons:

Adrian Manescu v Baker Hughes Australia Pty Limited ABN:  20 004 752 050 [2019] WAIRC 00871; (2019) 100 WAIG 27

Adrian Manescu v Baker Hughes Australia Pty Limited [2020] WAIRC 00683; (2020) 100 WAIG 1166

Adrian Manescu v Baker Hughes Australia Pty Limited ABN:  20 004 752 050 [2021] WAIRC 00160; (2021) 101 WAIG 491

Commissioner of Police v AM [2011] WAIRC 00021; (2011) 91 WAIG 6

Ex parte Mathews (1918) 18 SR 316

Federated Sawmill, Timberyard and General Workers’ Employees’ Association v Alexander (1912) 15 CLR 308

Felton v Mulligan (1971) 124 CLR 367

General Steel Industries v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Rogers v J-Corp Pty Ltd [2015] WAIRC 00862; (2015) 95 WAIG 1513

The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Michael Nelson Clark and Amanda Joy Clark t/as Mike Clark Contracting (1995) 76 WAIG 4

Treasury Wine Estates Vintners v Pearson [2019] FCAFC 21; (2019) 367 ALR 29

United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13

Reasons for Decision

THE FULL BENCH:

Procedural history

1         The appellant commenced proceedings before the Industrial Magistrates Court in September 2020 under the Fair Work Act 2009 (Cth).  The appellant contended that the respondent had failed to comply with the Professional Engineers Award 2010 and the National Employment Standards. The proceedings were commenced in the court as an “eligible State or Territory court” under s 12 of the FW Act.  The order sought at first instance was that the respondent pay a penalty for its alleged non-compliance.  The respondent made an application to the court that the appellant’s claim at first instance be struck out or in the alternative, that summary judgement be entered.  This was on the basis that the appellant’s claims were substantially the same as previous proceedings commenced by the appellant in the court under the FW Act, and which were dismissed by her Honour Scaddan IM in December 2019:  Adrian Manescu v Baker Hughes Australia Pty Limited ABN:  20 004 752 050 [2019] WAIRC 00871; (2019) 100 WAIG 27 (the first proceedings).  The respondent advanced various bases for its strike out application, including that the appellant’s claims had no reasonable grounds; were an abuse of process; were frivolous and vexatious; and were designed to harass or annoy the respondent.

2         By a decision dated 11 June 2021, the learned Industrial Magistrate concluded that the applicant’s claims had either been, or ought to have been, litigated before the court in the first proceedings.  Therefore, it was held that the appellant’s claims before her Honour constituted an abuse of process, the respondent’s application to strike out the appellant’s claims was successful and the claims were dismissed:  Adrian Manescu v Baker Hughes Australia Pty Limited ABN:  20 004 752 050 [2021] WAIRC 00160; (2020) 101 WAIG 491 (the second proceedings).

3         Furthermore, at the time the decision of the court was handed down in the second proceedings, the respondent made an application for costs.  From the transcript of proceedings, the learned Industrial Magistrate was not persuaded that for the purposes of s 570 of the FW Act, the appellant instituted the proceedings before the court “vexatiously or without reasonable cause”.  However, her Honour, Hawkins IM, did observe that the appellant came “perilously close” (p 8 transcript at first instance).

4         Additionally, following the decision of the court in the first proceedings, the appellant appealed to the Full Bench (the first appeal).  In August 2020, the Full Bench dismissed the appellant’s appeal in that matter, on the basis that the appellant’s claim before the court in the first proceedings involved the exercise by the court of its jurisdiction under the FW Act.  It was held by the Full Bench that an appeal from such a decision of the court can only be to the Federal Court under s 565(1) of the FW Act and the Full Bench has no jurisdiction under s 84 of the Industrial Relations Act 1979 (WA) to hear and determine such appeals:  Adrian Manescu v Baker Hughes Australia Pty Limited [2020] WAIRC 00683; (2020) 100 WAIG 1166.

The appeal

5         The appellant now appeals to the Full Bench under s 84 of Act the against the decision of the court in the second proceedings (the second appeal).  The appellant has not complied with reg 102(3) of the Industrial Relations Commission Regulations 2005 (WA), in that he has not set out clearly how the decision of the court is wrong in law.

6         However, as best we can ascertain from the notice of appeal, in essence, the appellant complains that the respondent, in its strike out application, omitted to include a page from the appellant’s originating claim, setting out particulars of the appellant’s alleged breaches of the Award and the NES.  Whilst in the proceedings, her Honour informed the appellant that the court had before it all of the relevant documents in relation to the appellant’s originating claim, the appellant maintained that the respondent (and the court) could not properly deal with the respondent’s strike out application if they did not have the full particulars of the appellant’s claim before them.  Furthermore, the appellant complained that the respondent’s affidavit in support of the strike out application was also incomplete and inaccurate, for the same reason.

7         The appellant also maintained that in the first proceedings, the learned Industrial Magistrate only dealt with his claims for overtime payments and the payment of a bonus.  The appellant submitted that he did not abandon or release the respondent from other claims, including his claim for annual leave, and therefore, his claim for annual leave should not have been struck out by the court in the second proceedings.

8         The appellant seemed to accept, from his grounds of appeal, following the first appeal Full Bench decision, that the Full Bench has no jurisdiction to deal with appeals brought from matters heard in the court under the FW Act.  However, as we understood his contentions, the appellant maintained that as the strike out application, successfully made by the respondent, was made in accordance with the Magistrate’s Court (Civil Proceedings) Act 2004 (WA) and the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), the Full Bench has jurisdiction to hear appeals from decisions of the court, made under this State legislation.

9         The appellant submitted that in essence, the decision of the court in the second proceedings was procedurally unfair, as the respondent’s application to strike out his claim was defective; further, that the appellant had insufficient time to properly respond to the material filed by the respondent in support of its strike out application; and that the learned Industrial Magistrate made errors in not taking into account these procedural defects in her decision to uphold the strikeout application and dismiss the appellant’s claim.

Show cause why appeal should not be dismissed

10      The Full Bench listed the appeal for hearing to show cause why it should not be dismissed for want of jurisdiction, under s 27(1) of the Act.  The Full Bench did so because it was apparent from the second proceedings, and as seemingly accepted by the appellant, that the Full Bench has no jurisdiction to hear an appeal from the court when exercising federal jurisdiction under the FW Act.

Appellant’s submissions

11      The appellant maintained in his written outline of submissions that had the second proceedings before the court ran their full course, and had they not been dismissed by a procedural strike out application, then the appropriate jurisdiction for any appeal from such a decision would be the Federal Court, as the Full Bench of the Commission is not an “eligible State or Territory court” for the purposes of s 12 of the FW Act.  As set out in his notice of appeal however, the appellant submitted that given the application to strike out the proceedings or for summary judgement in the second proceedings was made under the above State legislation, prescribing procedural powers available to the court, this meant that the Full Bench did have jurisdiction to entertain the appeal. 

12      Furthermore, the appellant also complained that the respondent’s supporting affidavit at first instance was defective, and contrary to the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).  The appellant maintained that non-compliance with this State legislation was also a further basis upon which the Full Bench had jurisdiction to entertain the appellant’s appeal.

Respondent’s submissions

13      The respondent in its written submissions, contended that the appeal should be dismissed as there was no jurisdiction under s 84 of the Act in the present case.  Reference was made by the respondent to the first appeal Full Bench decision which, it was submitted, made it clear that the only avenue of appeal available to the appellant from a decision of the court exercising jurisdiction under the FW Act, is to the Federal Court in accordance with s 565(1) of the FW Act.  It was submitted that the Full Bench in that decision, made it plain that the appellant’s appeal was jurisdictionally incompetent, regardless of the basis for the appeal, including whether procedural fairness principles were complied with or not.

14      Furthermore, the respondent also made submissions to the effect that having regard to s 12 of the FW Act, the Full Bench of the Commission is not an “eligible State or Territory court” and an appeal from a decision of the court cannot lie to the Full Bench, when the court exercises federal jurisdiction under the FW Act.  In the alternative, whilst it was not posited by the appellant, it could not be contended, on the respondent’s submissions, that the court in the second proceedings, was exercising summary jurisdiction for the purposes of s 565(1A)(a) of the FW Act.  The submission was that in any event, even if the proceedings at first instance could be so characterised, given that the Full Bench of the Commission is not an eligible State or Territory court for the purposes of s 12 of the FW Act, any appeal from such a decision to the Full Bench was also jurisdictionally incompetent.

15      In the further alternative, the respondent in its written submissions contended that even if the appeal was not dismissed on jurisdictional grounds, then it should be dismissed on the merits.  For reasons which are to follow, we do not find it necessary to consider those submissions any further.

Consideration - jurisdiction point

16      There is no dispute in this case that the court had before it in the second proceedings, a claim by the appellant to enforce federal industrial instruments under ss 44 and 45 of the FW Act, both of which are civil remedy provisions.  By s 539 of the FW Act, a person may apply to the courts listed in the table set out in s 539(2) of the FW Act, for orders in relation to a contravention or proposed contravention of the civil remedy provisions.  One of the specified courts in column 3 of the table, is “an eligible State or Territory court”.  An eligible State or Territory court, as defined in s 12 of the FW Act, is a Magistrates court, which includes the Industrial Magistrates Court.

17      There is no doubt, and it has now been decided by the Full Bench on two occasions, including the first appeal where the appellant was the appellant on the appeal, that under s 565 of the FW Act, an appeal from the court when “exercising jurisdiction” under the FW Act, can only be brought in the Federal Court.  The first occasion where this issue was determined was the decision of the Full Bench in Rogers v J-Corp Pty Ltd [2015] WAIRC 00862; (2015) 95 WAIG 1513.

18      As noted above, the crux of the appellant’s case on this appeal however, as we understood it, was that as the court in the second proceedings dismissed his claim in the exercise of its powers under the MC(CP) Act and the IMC(GJ) Regulations, being State laws, then the Full Bench has jurisdiction to entertain the appellant’s appeal.  For the following reasons, the appellant’s contentions are misconceived.

19      By s 77(iii) of the Commonwealth Constitution the Commonwealth Parliament may invest any court of a State with federal jurisdiction.  When the Commonwealth Parliament does so, it takes the State courts as it finds them:  Federated Sawmill, Timberyard and General Workers’ Employees’ Association v Alexander (1912) 15 CLR 308 per Griffiths CJ at 313; Ex parte Mathews (1918) 18 SR 316 per Cullen CJ at 318 (Gordon and Ferguson JJ agreeing); both cited in Treasury Wine Estates Vintners v Pearson [2019] FCAFC 21; (2019) 367 ALR 29 at [25].  In Treasury Wine Estates, the effect of the investing of State courts with federal jurisdiction was considered by the Full Court of the Federal Court of Australia.  In that case, the issue that arose for consideration was whether the South Australian Employment Tribunal in Court Session, as the successor to the Industrial Court of South Australia, had acquired federal jurisdiction in relation to existing federal matters which had been commenced before the Industrial Court.  The South Australian Employment Tribunal was established by State legislation restructuring the industrial law system in South Australia.

20      In deciding that the State legislation reforming the industrial law system in South Australia did not support the conclusion that the Employment Tribunal in Court Session acquired federal jurisdiction, the Court (Rares, Perry and Charlesworth JJ) considered the nature of the conferral of federal jurisdiction on State courts generally.  Their Honours said at [30] to [34] as follows:

[30] In our opinion, the joint submissions misconceived the existence of “original” (which, we understood as meaning State) jurisdiction as separate from federal jurisdiction.  Once a matter involves any aspect of federal jurisdiction, ordinarily, the whole of the controversy will be in federal jurisdiction and there will be no residue in respect of which the court could or would exercise State jurisdiction to the extent it is applicable.

[31] This is because ss 38 and 39(1) of the Judiciary Act 1903 (Cth) operate to remove the jurisdiction of State courts in all nine classes of matters identified in ss 75 and 76 of the Constitution as ones in which the High Court has, or can exercise, original jurisdiction.  However, s 39(1) of the Judiciary Act invests the several courts of the States with federal jurisdiction in the classes of matters in s 76 of the Constitution, in which, pursuant to s 38, the High Court does not have exclusive jurisdiction.  The consequence of the vesting of federal jurisdiction in a State court by s 39(1) of the Judiciary Act or another Act of the Parliament (such as ss 548 and 565(1A)(a) of the Fair Work Act (Cth)) is that “no State jurisdiction can exist” in respect of a matter within the vested federal jurisdiction (per Isaacs J in Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1142; 13 ALR 313).  In MZXOT v Minister for Immigration and Citizenship (The Remitter Case) (2008) 233 CLR 601; 247 ALR 58; 102 ALD 459; [2008] HCA 28 at [23]–[24] per Gleeson CJ, Gummow and Hayne JJ; and [180] per Heydon, Crennan and Kiefel JJ, their Honours approved the reasoning of Barwick CJ in Felton v Mulligan (1971) 124 CLR 367 at 373; [1972] ALR 33 when he said:

     if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had.  In my opinion, s 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court.

[32] In Goward v Commonwealth (1957) 97 CLR 355 at 360–1; [1957] ALR 825, Dixon CJ, Williams, Webb and Kitto JJ explained that when the Parliament expressly confers jurisdiction on a State court in an enactment (such as in ss 548 and 565(1A)(a) of the Fair Work Act (Cth)) it does so on the implied assumption that s 39 of the Judiciary Act operates to fix the general nature of the State court’s jurisdiction in such a matter and that the State court will give the relief that the new provision (such as those in the Fair Work Act (Cth)) prescribes in the exercise of federal jurisdiction under s 39.

[33] The expression “federal jurisdiction” simply means that a law made by the Parliament of the Commonwealth or the Constitution itself is, in fact, the source of a court’s authority to adjudicate in a particular matter is [sic]:  Rizeq v Western Australia (2017) 262 CLR 1; 344 ALR 421; 57 Fam LR 294; [2017] HCA 23 at [52]–[54] per Bell, Gageler, Keane, Nettle and Gordon JJ.  As they explained (at [55]–[56], [58]):

     Thus, it is commonplace that resolution of a matter within federal jurisdiction may involve application both of Commonwealth law and of State law.  Indeed it can happen that a matter in federal jurisdiction is resolved entirely through the application of State law … There is but one matter and that matter is entirely within federal jurisdiction, as distinct from State jurisdiction.

     The simple constitutional truth is that State laws form part of the single composite body of federal and non-federal law that is applicable to cases determined in the exercise of federal jurisdiction in the same way, and for the same reason, as they form part of the same single composite body of law that is applicable to cases determined in the exercise of State jurisdiction — because they are laws.

     …

     The incapacity of a State law to affect the exercise of federal jurisdiction by a State court is a manifestation of the general incapacity of any Parliament or legislature other than the Parliament of the Commonwealth to affect the exercise of federal jurisdiction conferred by or conferred or invested under Ch III of the Constitution.

[34] Their Honours concluded (at [61]):

     Just as State Parliaments have no power to add to or detract from federal jurisdiction, State Parliaments have no power to command a court as to the manner of exercise of federal jurisdiction conferred on or invested in that court [Alqudsi v R (2016) 258 CLR 203; 332 ALR 20; [2016] HCA 24 at [171]; R v Todoroski (2010) 267 ALR 593; [2010] NSWCCA 75 at [8]].To use the language of s 107 of the Constitution, the entire subject matter of the conferral and exercise of federal jurisdiction is a subject matter of legislative power that is, by Ch III of the Constitution, “exclusively vested in the Parliament of the Commonwealth.

21      In the present case, the conferral of jurisdiction on the court by s 539 of the FW Act, means that in the disposition of a matter referred to the court under the FW Act, no State jurisdiction exists.  The jurisdiction exercised by the court is exclusively federal.  Thus, whilst the court may exercise its various procedural and other powers under the MC(CP) Act, and the IMC(GJ) Regulations, this does not alter the law that the jurisdiction exercised by the court is federal only.  By ss 565(1) and 565(1A) of the FW Act, the Full Bench has no jurisdiction to hear an appeal from the court exercising this federal jurisdiction.

22      Whilst the respondent in its written submissions dealt with the issue of whether the court was exercising summary jurisdiction for the purposes of s 565(1A)(a) of the FW Act, it is not necessary to consider this issue, because, for the reasons submitted by the respondent, the Full Bench of the Commission is not an eligible State or Territory court for the purposes of ss 12 and 565(1A) and (1B) of the FW Act:  J-Corp per Smith AP at [94].

23      Additionally, whilst the matter was not raised by the respondent in its submissions, as discussed in J-Corp at [96] to [113], and as referred to by Barwick CJ in Felton v Mulligan (1971) 124 CLR 367 at 373, cited in Treasury Wine Estates above at [31], in cases such as the present, there also arises an inconsistency between s 565 of the FW Act and s 84 of the Act, for the purposes of s 109 of the Commonwealth Constitution, and the latter is inoperative and is displaced.  For these reasons too, as noted in J-Corp at [113], no distinction arises between the exercise of federal jurisdiction on the one hand, and State powers on the other.

24      For the foregoing reasons, the Full Bench must dismiss the appeal for want of jurisdiction.

Costs

25      The respondent has brought an application for costs in this the second appeal.  The power of the Full Bench to award costs on an appeal under s 84 of the Act is set out in s 84(5) of the Act which is in the following terms:

….    (5) In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner, or agent of that party unless, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

26      In reliance on s 84(5) of the Act, the respondent submitted that the appellant’s appeal was frivolously instituted.  It was submitted that the first appeal Full Bench decision made it plain that the Full Bench does not have jurisdiction to hear and determine appeals brought under s 84 of the Act, from decisions of the court exercising federal jurisdiction under the FW Act.  The respondent submitted that the appellant, from the first appeal, was clearly aware of this and acknowledged such in his notice of appeal, but nonetheless, proceeded to institute these proceedings.

27      It was contended by the respondent that given the procedural history as outlined above, the appellant, even as a self-represented party, was no stranger to the appellate jurisdiction of the Commission and the issues arising in relation to the court exercising State and federal jurisdiction.  For these reasons, the respondent contended that this appeal was frivolous, especially when considering that the court committed no error in reliance upon the materials that it did, in dismissing the appellant’s claim in the second proceedings.

28      In the present circumstances, the respondent submitted that the action of the appellant, in commencing his appeal to the Full Bench, in the knowledge of an absence of jurisdiction, constituted a “very rare occasion” as referred to by the Industrial Appeal Court in Commissioner of Police v AM [2011] WAIRC 00021; (2011) 91 WAIG 6, where a costs order would be appropriate.  In support of this submission, the respondent also referred to the observations of the learned Industrial Magistrate in the second proceedings, in relation to the respondent’s costs application in that matter, and that the appellant was close to being found to have instituted those proceedings frivolously or vexatiously.  Accordingly, in all of these circumstances, the respondent contended that this is a case where the Full Bench should exercise its discretion in favour of the respondent’s application for costs.

29      The appellant opposed the application for costs, for the same reasons he resisted the dismissal of the appeal on jurisdictional grounds, that being that the court was exercising its procedural powers under State legislation.

Consideration - costs

30      Section 86(2) of the Act, in relation to costs in appeals before the Industrial Appeal Court, is in similar terms to s 84(5).  In The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Michael Nelson Clark and Amanda Joy Clark t/as Mike Clark Contracting (1995) 76 WAIG 4, the Court considered the terms of s 86(2) and the policy position in relation to the making of costs orders.  At p 5, the Court (Kennedy, Rowland, and Franklyn JJ) said:

The policy envisaged within s86(2) of the Act indicates that it will only be on very rare occasions that the costs of a legal practitioner or agent will be granted.  The section was considered by this Court in Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22, at 26-27, where the Court said, in relation to the respondent's submissions at the conclusion of the hearing of an appeal, that there should be an order for costs in its favour:

"In support of these submissions it was said that the appeal was so unmeritorious and misconceived that the section should be applied.  In the submissions it was said for the respondent that the meaning of the words "frivolous or vexatious" had not attracted explanation in decisions of the Court, the matter apparently not having been raised on any previous occasion.  The submissions for the respondent were supported by reference to Naqvi v M B P (SA) Pty Ltd (1981) 36 ALR 379 where consideration was given to s 197A of the Crimes Act 1914 (Cth) providing for the payment of costs where proceedings were instituted "vexatiously or without reasonable cause".  Evatt J referred to discussion of that section by Northrop J in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 and the judgment of Barwick CJ in General Steel Industries v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129 where the Chief Justice said in relation to the words "frivolous or vexatious" in O 26, r 18 of the High Court Rules 1952 (Cth):

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.  The test to be applied has been variously expressed:  'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; so manifestly faulty that it does not admit of argument'; 'discloses a case which the court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.

The application for costs is opposed on behalf of the appellant on the grounds that there was no intent or purpose of being vexatious or frivolous and that the authorities relied upon are factually distinguishable from the present circumstances.

The award of costs is a discretionary matter.  While it is the case that in our opinion the appeal was untenable, we are not satisfied that this is an appropriate occasion to make an award of costs pursuant to s 86(2) of the Act.  It must be remembered that the appellant succeeded at first instance.  The section has to be applied in the context of the Act as a whole and having regard to the relative informality of proceedings before the Commission and the general policy of not awarding costs.  In the particular circumstances of this matter, we are not prepared to hold that the appeal is brought vexatiously or frivolously.  The application for costs is refused."

In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, at 273, in the context of an Act which stated that "a party shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceedings vexatiously or without reasonable cause", Northrop J held that "the test is not subjective to the party instituting the proceedings".

We accept that the test is an objective one.

31      Additionally, in AM, after considering and applying the observations of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, cited in Clark Contracting above,  Buss J (Pullin and Le Miere JJ agreeing) further said at [35] to [36]:

35 As Kennedy, Rowland & Nicholson JJ noted in Tip Top Bakeries, s 86(2) must be applied in the context of the Act as a whole and having regard to the relative informality of proceedings before the Commission and the general policy of not awarding costs (27).  In Clark, Kennedy, Rowland and Franklyn JJ said that the policy envisaged within s 86(2) indicates that it will only be on 'very rare occasions' that the costs of a legal practitioner will be awarded (335).

36 It is plain from the earlier decisions of this court to which I have referred that something substantially more than either a lack of success, or the prospect of a lack of success, must be established before an unsuccessful party can be held to have frivolously or vexatiously instituted or defended, as the case may be, an appeal under s 90.  So, relevantly to the present case, not every appeal which is determined to be without merit, either because this court does not have jurisdiction or otherwise, will necessarily have been instituted frivolously or vexatiously.

32      For the following reasons, which we can shortly express, despite the general policy position as expressed in the authorities set out above, this is a case which is an exception to the general rule and is one of the “very rare occasions”, when a costs order in favour of the respondent should be made.

33      The appellant has now commenced two appeals to the Full Bench, both of which were and are jurisdictionally incompetent.  As the respondent correctly contended, the appellant, although self-represented, given the procedural history outlined above, is no stranger to the question of the exercise of State and federal jurisdiction by the Industrial Magistrates Court and the Full Bench.  He was on notice arising from the first appeal and acknowledged such in his notice of appeal in this, the second appeal, that the Full Bench has no jurisdiction in relation to an appeal from the court exercising federal jurisdiction under the FW Act.  Despite this, the appellant instituted and continued with his appeal, putting the respondent to the expense of defending it.  In our view, on any objective assessment, this is a case where the appeal was “manifestly groundless” and was one “which cannot succeed”, as enunciated by Barwick CJ in General Steel Industries.

34      We conclude that in these circumstances, the appeal has been instituted frivolously.  We turn now to determine what costs should be awarded to the respondent.

35      At the direction of the Full Bench, the respondent has filed a detailed Bill of Costs in the sum of $8,707.60, inclusive of $1,100.00, in costs in drawing the Bill.  The costs claimed include perusal of the appeal papers; attendances on the client; reviewing the law; preparation of written submissions (which submissions were detailed) and preparing for the hearing of the appeal.

36      As a matter of general principle, solicitor and own client costs are distinguishable from party and party costs awarded by the court to the successful party.  Solicitor and own client costs are payable by a client to a solicitor, in accordance with a contract between the parties, setting out the relevant fees payable.  For party and party costs, in civil proceedings, costs are awarded in accordance with a scale of costs applicable in the relevant jurisdiction.  The Full Bench is an intermediate court of appeal in Western Australia:  United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13.  Accordingly, we consider the costs scales in the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018, made under the Legal Profession Act 2008 (WA), applying to appeals to the District Court of Western Australia, to be a useful guide for present purposes.

37      The two solicitors working on this matter for the respondent are senior practitioners, charging an hourly rate of $418.00.  This is well within the maximum rate of $495.00 per hour under the Determination.  For the conduct of appeals, preparation of appeals for hearing, including preparation of appeal documents and submissions, a maximum amount of $4,950.00 is prescribed.  Separate counsel was not briefed on the appeal, as one of the solicitors involved in preparation of the appeal appeared before the Full Bench.  On the day of the appeal, the hearing was relatively short and took approximately half an hour.  At the above hourly rate for the practitioner concerned, this would be approximately $200.00.  Therefore, under the Determination, the maximum amount recoverable on a party and party basis would be approximately $5,150.00.

38      Having determined that a costs order should be made under s 84(5) of the Act in this case, the quantum of any costs order is a matter of discretion for the Full Bench, which discretion is to be exercised under s 26(1) of the Act, in accordance with equity, good conscience and the substantial merits of the case.   In all of the circumstances of this matter, and having regard, as a guide, to the maximum amount payable under the Determination, we consider an amount of $5,150.00 to be appropriate.

39      Accordingly, the Full Bench will make orders that the appeal be dismissed for want of jurisdiction and that the appellant pay costs to the respondent in the sum of $5,150.00.