2022 WAIRC 00643
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00643

CORAM
: INDUSTRIAL MAGISTRATE B. COLEMAN

HEARD
:
FRIDAY, 1 JULY 2022

DELIVERED : WEDNESDAY, 31 AUGUST 2022

FILE NO. : M 168 OF 2020

BETWEEN
:
BRALEA PTY LTD AS THE TRUSTEE FOR THE BRALEA TRUST (COMMONLY KNOWN AS LONE RANGES SHOOTING COMPLEX)
APPLICANT

AND

THE AUSTRALIAN WORKERS UNION
RESPONDENT

CatchWords : INDUSTRIAL LAW – Awarding of Costs – Frivolous or Vexatious - Relevant principles applied – Costs Awarded
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Instruments : Amusements, Events and Recreation Award 2010 (Cth)
Case(s) referred
to in reasons : Denise Brailey v Mendex Pty Ltd T/A Mair and Co Maylands (1992) 73 WAIG 26
Adrian Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 762 050 [2021] WAIRC 00558
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 Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S)
Jones v Dunkel [1959] HCA 8
Result : Application granted
REPRESENTATION:

APPLICANT : MR J. LESLIE (OF COUNSEL) FROM ZAFRA LEGAL
RESPONDENT : MR C. DUNNE (OF COUNSEL) FROM THE AUSTRALIAN WORKERS UNION


REASONS FOR DECISION
1 By application lodged on 4 March 2022 the respondent Bralea Pty Ltd as the Trustee of the Bralea Trust, commonly known as Lone Rangers Shooting Complex (the respondent) seeks costs be paid by the claimant, pursuant to reg 11 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) (the Regulations).
Background
2 On 2 October 2020, The Australian Worker’s Union (the claimant) filed a claim in the Industrial Magistrate’s Court (the Court) alleging a failure by the respondent to comply with the Amusements, Events and Recreation Award 2010 (Cth)(the Award) and alleging contraventions of s 45 and s 323 of the Fair Work Act 2009 (Cth).
3 The claimant alleged an underpayment of wages in the amount of $4,958.19 and non-payment of superannuation in the amount of $1,157.09, relating to the former employee Mr Jamie Christensen (Mr Christensen).
4 The originating claim attached calculations in the form of a spreadsheet. The spreadsheet was emailed to the respondent’s lawyers on 15 October 2020. Affidavit of Joshua James Leslie sworn 2 March 2022 [13].

5 On 28 October 2020, the respondent filed a response wholly denying the claim. The information within the response placed the claimant on notice that the respondent had undertaken an audit in February 2018 which had identified a shortfall, resulting in a supplementary payment having been made to Mr Christensen.
6 On 25 November 2020, the solicitor for the respondent wrote to the claimant’s representative, setting out detailed reasons why the claim would not be successful and attaching amendments to the claimant’s spreadsheet. The respondent informed the claimant that the respondent intended to seek costs if the matter proceeded further. Affidavit of Joshua James Leslie sworn 2 March 2022 [15].

7 On 8 December 2020 the parties attended a pre-trial conference. The respondent was ordered to provide the claimant with the supporting calculations arising from the 2018 audit.
8 On 12 January 2021, the respondent’s solicitor emailed the calculations to the claimant’s representative. Affidavit of Joshua James Leslie sworn 2 March 2022 [17].

9 On 31 March 2021, the parties attended a further pre-trial conference. On 1 April 2021, the Clerk of the Court made an order that the claimant lodge with the court an amended statement of claim, to include:
· The quantum of the claim; and
· Detailed calculations of how the quantum was determined specifying the breaches claimed.
10 On 20 April 2021, the claimant filed an amended statement of claim with amended figures for unpaid wages and superannuation, being $5,733.60 and $543.44 respectively.
11 The amended claim also sought an additional 15 minutes payment for each shift that Mr Christensen had worked. The new portion of the claim had not been foreshadowed at either of the two pre-trial conferences.
12 On 13 May 2021 the respondent filed its amended response denying the whole of the amended claim.
13 On 14 June 2021 the parties attended a programming conference and programming orders were made for trial.
14 On 16 July 2021, the respondent lodged a counterclaim seeking an order that Mr Christensen pay the amount of $1,321.92 to the respondent due to an overpayment in wages: it was alleged that Mr Christensen had failed to work the entirety of his allocated shifts.
15 Discussions between the parties then ensued. Affidavit of Joshua James Leslie sworn 2 March 2022 [28], [29].

16 On 1 September 2021, the claimant lodged a notice of discontinuance of the proceedings.
Determination
17 The Industrial Magistrates Court’s power to award costs is set out in reg 11 of the Regulations.
18 The award of costs is discretionary: for a costs order to be made against a party to the proceedings, the Court must be objectively satisfied that ‘the case has been frivolously or vexatiously instituted or defended, as the case requires, by that party’. Regulation 11 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA).

19 The general policy within industrial jurisdictions is that costs ought only be awarded in extreme cases. Denise Brailey v Mendex Pty Ltd T/A Mair and Co Maylands (1992) 73 WAIG 26 [27].

20 In determining ‘extreme’, consideration must be given to the facts of each case.
21 Examples have included instances where proceedings have been instituted without reasonable cause (either at first instance or on appeal), or where an employee was not in fact subject to the award. Denise Brailey v Mendex Pty Ltd T/A Mair and Co Maylands (1992) 73 WAIG 26 [27]; Adrian Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 762 050 [2021] WAIRC 00558; 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.

22 In support of its application, the respondent relies upon the originating claim and response, the amended claim and response, along with the affidavits of Mr Joshua James Leslie (Mr Leslie) sworn 2 March 2022 and Mr Bradley John Yates (Mr Yates) sworn 27 May 2022.
23 The claimant has filed one affidavit in response to the application, being that of the legal representative Mr Craig Dunne (Mr Dunne) sworn 6 May 2022.
24 Mr Dunne took carriage of the claim in July 2021, after the retirement of the previous industrial officer Mr Carl Young (Mr Young).
25 Mr Dunne’s affidavit describes his involvement in the action from July 2021, including the decision to discontinue the claim: his affidavit is largely consistent with that of Mr Leslie. Mr Dunne did not avow to any events that occurred prior to his commencement of employment with the claimant.
26 No other affidavit material is relied upon by the claimant, nor has the claimant sought to lead viva voce evidence with respect to the application. The claimant seeks only to rely upon Mr Dunne’s affidavit, the legal submissions and the supplementary oral submissions made at the hearing on 1 July 2022.
27 No adverse inference should be drawn from the failure to call evidence: the claimant does not bear any onus of proof on this application. Jones v Dunkel [1959] HCA 8.
The onus lies with the respondent to prove its application based upon the evidentiary material that it may produce to substantiate the application for costs. The fact that the claimant chose not to rely upon any substantial evidentiary material in response to the application does not reverse the onus of proof.
28 Further, the claimant has not, and is not, required to provide any explanation for the discontinuance of the claim.
29 In determining this costs application, I am not required to consider why, as a matter of fact, the claim did not proceed to trial. My focus must be upon the originating claim and whether, objectively, the claim was instituted either frivolously or vexatiously.
30 The Regulations do not define the words ‘frivolous’ or ‘vexatious’.
31 I adopt the review of the case law and conclusions of Buss J in the Full Court decision of The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) regarding the meaning of the words ‘frivolous’ and ‘vexatious’.
32 Buss J’s conclusions are summarised as follows:
1. The discretion to award costs will only arise in circumstances where the party applying for costs establishes that the other party has instituted or defended the proceedings frivolously or vexatiously; The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) [26].

2. Where the discretion is enlivened, it does not automatically follow that costs should be awarded: the court must still have regard to general policy and to all of the circumstances of the case to decide whether to exercise its discretion; The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) [26].

3. The test is not whether in fact the proceedings are frivolous or vexatious but rather, whether the proceedings have been frivolously and vexatiously instituted or defended; The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) [27].

4. ‘Frivolous’ means to have no reasonable grounds for the claim. The test has been expressed variously as:
4.1. ‘so obviously untenable that it cannot possibly succeed’;
4.2. ‘manifestly groundless’;
4.3. ‘so manifestly faulty that it does not admit of argument’;
4.4. ‘discloses a case which the Court is satisfied cannot succeed’;
4.5. ‘under no possibility can there be a good cause of action’;
4.6. ‘be manifest that to allow … (the pleadings) to stand would involve useless expense’ The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) [32].
.
5. ‘Vexatious’ means to institute the claim without sufficient grounds for success in order to cause trouble or annoyance to the other party. Proceedings can be vexatious if they:
5.1. are instituted with the intention of annoying or embarrassing the other party;
5.2. brought for collateral purposes; or,
5.3. irrespective of the motive of the litigant, the proceedings are so untenable or manifestly groundless as to be ‘utterly hopeless’. The Commissioner of Police of Western Australia v AM [2010] WASCA 163 (S) [33].

33 A plain reading of both the originating and amended claims reveals that the claim is patently faulty. This is further cemented upon review of Mr Leslie’s affidavit and attachments, along with the relevant provisions of the Award.
34 The originating claim attached a spreadsheet that contained several errors in calculations, including a failure to demonstrate ‘offsets’, a failure to account for meal breaks and the miscalculation of several monetary figures.
35 The originating claim failed to address clearly how the claim for the monetary amounts arose vis a vis the compensatory payment made by the respondent, such that orders were made by the Clerk of the Court at the further pre-trial conference on 1 April 2021 to file an amended claim.
36 At the very least, by 12 January 2021, upon receipt of the audit calculations, Affidavit of Joshua James Leslie sworn 2 March 2022, annexure JJL6.
the claimant had received the necessary information from the respondent that demonstrated the claim was without merit. It was at that point in time that the claim should have been discontinued.
37 Instead, the claimant’s representative Mr Young sought directions from the Clerk of Court Affidavit of Joshua James Leslie sworn 2 March 2022 [20].
and subsequently filed an amended claim.
38 The amended claim sought to introduce an additional claim for monies allegedly owed to Mr Christensen for an earlier start time: in the absence of evidence to the contrary, objectively it appears that the claim was amended as such to bolster an otherwise unsustainable claim.
39 The motives of the claimant’s previous representative with respect to the claim are not known, nor is it appropriate to speculate. The application can only be determined upon the documentary evidence filed with the Court.
40 Prior to the engagement of Mr Dunne, the claimant’s representative Mr Young did not engage in any meaningful conferral with the respondent, nor - based upon the pleadings and the evidence presented - was there any forensic analysis completed by the claimant to adequately determine whether the originating and amended claims were meritorious. In the absence of evidence from Mr Young, it is difficult to determine otherwise.
41 To continue a cause of action without undertaking such a process was fraught with danger, particularly in circumstances where the claimant was represented by an experienced industrial officer, the respondent disclosed the findings of its own audit at an early stage of the proceeding and, the respondent had placed the claimant on notice at the commencement of the action that the respondent intended to recover costs should the claim fail.
42 Without delving into a minute analysis of the calculations the subject of the claim, on the evidence presented in attachments 4 and 6 of Mr Leslie’s affidavit, with reference to the relevant provisions of the Award, it is apparent on its face that there were major defects in both the originating and amended claims, such that the claim in each of its forms was untenable, or in the alternative, that the claim was so frivolous that to allow the claim to continue would involve useless ongoing expense, not only to the parties but to the Court, considering the likely interlocutory applications that would have manifested prior to trial.
43 Due to the lack of foresight and preparation on the part of the claimant’s previous industrial officer Mr Young, the respondent has incurred the expense of defending a claim that was destined to fail. The respondent has established that the case was frivolously instituted and the discretion in reg 11 of the Regulations is enlivened.
44 Public policy necessitates that ordinarily, the industrial regime should be a ‘no costs’ jurisdiction, to allow all members of the community access to justice without fear of incurring excessive legal costs. However, in this instance, the claimant was represented from the outset by an experienced industrial officer who failed in his duty to ensure that the necessary checks and balances were in place to bring a competent claim before the Court.
45 Failure to do so not only wasted the Court’s time and resources but required the respondent to incur ongoing, prolonged and unnecessary legal costs. This is an extreme case where costs should be awarded.
46 Having concluded so, there is no need to consider whether the claim was vexatiously instituted.
Result
47 The claimant is to pay the respondent’s party-party costs of the proceedings from 12 January 2021, to be assessed if not agreed.



B. COLEMAN
INDUSTRIAL MAGISTRATE