FEDERAL COURT OF AUSTRALIA

Trustee for The MTGI Trust v Johnston [2016] FCAFC 140

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Any application for costs be filed and served within 14 days, together with submissions and any affidavit evidence, the submissions not to exceed five (5) pages.

3.    In the event that an application is filed, the submissions in response (also not exceeding five (5)) pages and any affidavit evidence be filed within 14 days of service of the application.

4.    Submissions in reply be filed and served within seven (7) days thereafter.

5.    Any such application be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    David Johnston is a former employee of the trustee for MTGI Trust trading as Macquarie Technology Group International (“MTGI”). On 16 January 2014 his employment came to an end in controversial circumstances. MTGI claimed he had abandoned his employment. He denied the claim and, after obtaining legal advice, brought an action in the Fair Work Commission for unfair dismissal.

2    Mr Johnston’s action was vigorously resisted, although little evidence was offered against it. Senior Deputy President Boulton, who heard it, found in Mr Johnston’s favour and awarded Mr Johnston compensation equivalent to 20 weeks’ pay: Johnston v The Trustee for the MTGI Trust T/A Macquarie Technology Group International [2014] FWC 7098. In a separate decision, he also awarded Mr Johnston costs in the fixed sum of $8,470: Johnston v The Trustee for the MTGI Trust T/A Macquarie Technology Group International [2015] FWC 996. MTGI applied to a Full Bench of the Commission for permission to appeal both decisions but permission was denied in each case: The Trustee for the MTGI Trust T/A Macquarie Technology Group International v Johnston [2015] FWCB 1288; The Trustee for the MTGI Trust T/A Macquarie Technology Group International v Johnston [2015] FWCB 6168. Now MTGI applies for relief under s 39B of the Judiciary Act 1903 (Cth) and s 562 of the Fair Work Act 2009 (Cth) (“FW Act”). It seeks to have both decisions of the Full Bench quashed and the matter remitted to the Commission for “consideration according to law”. No affidavit was filed in support of the application, although an affidavit from MTGI’s Chief Executive Officer and director, Paul Wallace, was filed purportedly in support of an application for a stay which was never made. Instead, MTGI filed a statement of claim.

3    The application is without merit.

Background

4    In November 2013 Mr Johnston’s wife gave birth to their fifth child. The baby was born 10 weeks premature. Consequently, Mr Johnston was required to look after the other children, three of whom were under five years of age, while his wife was hospitalised. Initially he took annual leave for that purpose, with the express agreement of MTGI. Later, at the instigation of a social worker from the hospital, he applied for “personal/carer’s leave” for the balance of the time that might be required to deal with this “unexpected emergency”. At the time he had more than 270 hours of accrued personal leave. His request was never answered, at least not directly, and when his annual leave ran out in early January 2014 he did not then resume work, instead returning to duties about two weeks later. On the day he returned, after he queried the pay he had received during his absence, he was told that he had abandoned his employment.

5    The principal argument before the Commission concerned Mr Johnston’s entitlement to personal/carer’s leave. MTGI’s contention was that Mr Johnston was merely seeking compensation for paid parental leave which “100% of all mature Australians would know … does not exist in Australian law today”.

6    Section 97 of the FW Act states:

Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a)    because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b)    to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i)    a personal illness, or personal injury, affecting the member; or

(ii)    an unexpected emergency affecting the member.

(Emphasis added.)

7    On Mr Johnston’s account of what had happened to him, he took his leave because his four older children required his care or support as a result of the unexpected emergency occasioned by the prolonged hospitalisation and convalescence of his wife following the premature birth of their baby.

8    The entitlement to take leave is not contingent upon obtaining the employer’s consent, either in advance of taking the leave or at all. It is, however, contingent on the employee complying with s 107. Section 107 imposes obligations on an employee to give his or her employer notice as soon as practicable (which may be a time after the leave has started), and to advise the employer of the period, or expected period, of the leave. If required to do so by the employer, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97.

9    Mr Johnston gave notice to MTGI in accordance with s 107 and provided evidence that the leave was taken for a reason specified in s 97, although there was no evidence to suggest that he had been required to do so. The effect of the evidence was that his notice was ignored.

The application to the Commission

10    Mr Johnston applied to the Commission under s 394 of the FW Act for an unfair dismissal remedy. Those remedies are set out in Pt 3-2 Div 4 of the Act. They include reinstatement (s 391) and compensation (s 392). Unfair dismissal is defined in Div 3. A person has been dismissed if the Commission is satisfied that his or her employment has been terminated at the initiative of the employer, or he or she was forced to resign because of conduct or a course of conduct in which the employer engaged (s 386(1)). A dismissal is unfair if the dismissal is harsh, unjust or unreasonable, the dismissal is not a case of genuine redundancy, and the dismissal is not consistent with the Small Business Fair Dismissal Code: s 385. In Mr Johnston’s case MTGI did not submit that the Small Business Fair Dismissal Code had been complied with, and the Commissioner was not satisfied that the dismissal was a case of genuine redundancy.

11    Section 387 provides that in considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable the Commission must take into account the following matters:

(a)    whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)    whether the person was notified of that reason; and

(c)    whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)    any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to dismissal; and

(e)    if the dismissal related to unsatisfactory performance by the person — whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)    the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)    the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)    any other matters that the FWC considers relevant.

The hearing before the Commission

12    Orders were made for the filing of witness statements and outlines of submissions on 23 May 2014 and on 17 June the matter was listed for hearing over three days, beginning 6 August 2014. On or about 19 June a statement from Mr Johnston was filed but no witness statement was filed on behalf of MTGI. Consequently, on 17 July 2014 the period allocated for the hearing was reduced to one day. Outlines of submissions were filed on behalf of both parties by their respective lawyers on or about 23 June 2014 but on 21 July 2014 MTGI’s lawyers filed a notice of ceasing to act.

Mr Johnston’s evidence

13    In his statement Mr Johnston said that he commenced employment with MTGI in July 2008 as a senior field engineer. At the same time he said he was also employed as a consultant with InfiNet Wireless. MTGI, he explained, was at all material times the Australian distributor of InfiNet Wireless products. Mr Johnston performed most of his work by telephone, email and site visits. By agreement with the director of MTGI, much of this work was conducted from his home in Bomaderry on the south coast of New South Wales.

14    In November 2012 Mrs Johnston was pregnant with their fifth child. Their four other children were all dependent. They ranged in age from 2 to 13.

15    On 7 November 2012, following an ultrasound, Mrs Johnston was told to immediately attend Shoalhaven Hospital. Mr Johnston drove her to the hospital. After she was examined, she was rushed by ambulance to the Royal Hospital for Women in Randwick, in the eastern suburbs of Sydney. Mr Johnston followed in his car. From the car he telephoned Mr Wallace. He told him that his wife was being rushed to hospital, that there were “complications with the baby”, and that he needed to be away for a while to support her. He asked Mr Wallace whether he knew anything about paternity leave to which Mr Wallace replied: “No. Why are you bothering going to the hospital? You can’t do anything anyway. Just turn around and go home.”. Mr Johnston did not follow Mr Wallace’s advice and continued to the hospital. Later that night, Mrs Johnston gave birth to their son, Adam, by emergency caesarean. He was 10 weeks premature.

16    Within a few days Mr Johnston made contact with Ian Kerr, MTGI’s bookkeeper. Mr Johnston described him as the CFO/Accountant. He told him that he was taking annual leave so that he could be with his wife and son in hospital. His payslip issued on 15 November 2013 records that he had 151.21 hours of accrued annual leave. It also showed that he had 270.22 hours of personal leave available to him. While on leave he performed “limited duties” for MTGI — sending and receiving emails and other correspondence in relation to product pricing and technical support.

17    On 11 November 2013 Mr Johnston sent an email to Warren Bold of Polyfone, which we gather is part of the MTGI group, advising him of a new firmware release for InfiNet Wireless. Less than an hour and a half later he received an email from Mr Wallace, sent from his iPhone:

Are u insane?

I will tell Polyfone staff when to consider new firmware.

Are u trying to undermine my credibility?

18    Mr Johnston replied:

Yes am insane and you are rapid

Just telling staff that the new release firmware, second iteration is finally out. Didn’t tell anyone to upgrade anything. But go ahead and think the worst as usual.

19    This generated the following response from Mr Wallace:

You need to think carefully mate

I didn’t do anything wrong.

You did do something wrong

I’m entitled to pull you up on mistakes

But you are not entitle to abuse me fr pulling you up on mistakes

Get it?

20    In his statement, to which these emails were annexed, Mr Johnston said that Mr Wallace’s criticism was inconsistent with normal practice. He said that on many occasions in the past he had advised Polyfone and other customers of firmware releases.

21    On 11 November 2013 Mr Wallace issued Mr Johnston with two written “official” warnings within 10 minutes of each other, both entitled “Failure to accept the directives of management”. The first followed an email from Mr Johnston to Mr Bold, which he had copied to Mr Wallace. That email read:

So just an adjunct to my last email, Dmitry in Russia has pointed out “There is a button “create admin” in the mac settings to automatically create svi/vian interfaces” so this may make it easy to upgrade when the time comes, AND you get permission. Wouldn’t want the wrong idea here.

22    The first warning did not identify which directives had not been followed. It merely stated:

No response is required of this message nor will any be tolerated. Any response received whatsoever will be considered to be further insubordination & the staff member may become subject to punitive measures without further notice.

23    Mr Johnston was not cowed. He replied:

Fine, what pissed off my wife had a baby and I have to take time off? Even though I am still working while neglecting my family. Somehow I don’t think you would understand any of that.

24    The second warning reads:

Abusive emails to management sent by the staff member.

No response is required of you nor will any be accepted.

Any further breach will result in your dismissal without further notice.

25    Mr Johnston said that these were the first performance related warnings he had ever received. He also said that he did not agree with them.

26    Through November and December Mr Johnston continued to perform “limited duties” for MTGI and InfiNet Wireless.

27    In early December 2013 Mr Johnston contacted Mr Kerr to inquire about the amount of annual leave that he had left and on 12 December 2013 he emailed Mr Kerr in terms which suggest that this was a continuation of an earlier conversation:

So this will reduce my sick leave instead of my annual leave? End of January is absolute worst case as Adam is scheduled to be transferred in under two weeks.

28    Attached to the email was a letter of the same date from a senior clinical social worker at the Royal Hospital for Women, co-signed by a neonatologist and the Director for Newborn Care at the hospital.

29    The letter reads:

This letter is in support of David’s need to take unexpected extended personal/carer’s leave.

My name is Melinda Temple and I am a Senior Clinical Social Worker at the Royal Hospital for Women (RHW). I have been supporting David and his wife Kadek since the premature birth of the baby Adam born on 7.11.2013. Adam was born at 30 weeks gestation (10 weeks early), and was admitted into the RHW Neonatal Intensive Care Unit, where he remains for an indefinite length of time. Apart from issues that are a result of prematurity, Adam has additional medical complications, one of which is a hernia that will require surgery.

David and Kadek have 4 other children together. Since RHW is such a great distance from their home, Kadek has been required to stay in Randwick, in order to be close to Adam, and provide necessary care and feeding. Due to this unexpected emergency David now has to take care of 4 dependent children. His additional family/carer responsibilities are likely to be needed until 29.1.2014. So far I understand that David has taken annual leave, however the FAIR WORK ACT 2009 – SECT 97 clearly identifies David’s entitlement to paid carer’s leave under the circumstances of an unexpected emergency.

Contact me in regards to this letter, if necessary, on …

(Emphasis added.)

30    There was no response to this letter and no evidence to indicate that Ms Temple had been contacted. Mr Johnston said that he assumed, having regard to the circumstances and in the absence of a response, that his request had been approved.

31    On 20 December 2013 Mr Kerr emailed Mr Johnston, saying only:

Hi Dj

Assuming you will be on holidays your leave will take you up to Friday 03/01/14

32    Mr Johnston did not reply. Given the amount of accrued leave he had owing to him at the time, he was presumably untroubled by Mr Kerr’s email.

33    The same day Adam was discharged from the Royal Hospital for Women and transferred to Shoalhaven Hospital but Mrs Johnston remained with him and Mr Johnston continued to look after their four other children in Bomaderry.

34    Adam was discharged from Shoalhaven Hospital on 4 January 2014 but Mr Johnston had to take him back to hospital a number of times over the next week for blood tests and check-ups. He attached to his statement an attendance certificate issued by the medical records department showing that he had attended the outpatients clinic with his wife in connection with their baby son on 6 January, 15 January and 25 February 2014.

35    On 11 January 2014 Mr Johnston received an email from Mr Wallace complaining about pricing and the delayed development on the Polyfone network. There was no suggestion that Mr Johnston had abandoned his employment.

36    On 16 January 2014, Mr Johnston emailed Mr Wallace, Mr Kerr and other MTGI employees, advising them that he was “[b]ack to work from 9.00am today”.

37    About five minutes later (at 11.28am) Mr Johnston sent another email to Mr Wallace and Mr Kerr, copying Mr Kerr’s assistant, Lee Nagata, asking whether there was any reason why his pay was only $669 for January. He said that this was “not what we expected”. He then telephoned Ms Nagata, advising that he was just checking to see why he had been “short paid”. She replied:

Stop trying to take Paul’s money. Just do yourself a favour and just go and get another job. Put what your problem is in writing and email it to me.

38    At 11.47am Mr Johnston emailed Ms Nagata, attaching the letter he had sent to Mr Kerr on 12 December 2013 with the accompanying letter from Ms Temple. He said that he had sent the letter both on 12 December 2013 and again on 14 January 2014 and stated:

As I have more than 275 hours of accrued sick leave I’m not really [sure] what the problem is?

39    At 1.35pm he received a letter in these terms from Mr Wallace:

I sent you an email last year about your entitlements.

The email contained clear advice that your “leave entitlements”, as advised to me by our accounts department, was going to run out on Jan 3, 2014. In usual circumstances it would have run out in 2013, however we paid you for the public holidays that fell in the middle of your leave, thus extending the expiration of your leave until January 3, 2014.

It is redundant to suggest that you are faced with either returning to work on Jan 6, 2014, or to not return to work & to then probably seek assistance from the Government.

I sent that email to you early on precisely to assist you in avoiding the jam you appear to have found yourself in.

Anyway, I did not receive a single email, text or telephone call from you, other than a demand to explain why MTGI was advising customers about MTGI’s product pricing, until today. That’s approaching 3 months now with Christmas and New Years in the middle… as I said… not a single text, email or call until today January 16, 2014.

Accordingly we had no choice but to assume that you had to abandon your job given the extremely heavy workload you have at home, in combination with the fact that I’d heard zero from (inc not a single Happy New Year or Merry Christmas … just zero) and also given that it’s now ten days past your return to work date then the outcome is a natural outcome.

100% lack of communications after nearly 3 months & now you’re asking why you haven’t been paid. Are you serious?

On a positive note, I’m advised that Centrelink (or whatever they’re called these days) will likely back pay you for the period back to January 3, however... they won’t if you don’t contact them.

40    Mr Johnston replied at 1.56pm, attaching the letter from Ms Temple sent to Mr Kerr on 12 December, asking whether Mr Wallace regarded that as “a valid medical certificate”, adding:

From just before Christmas I was spending every second day (and night) at the local hospital looking after my son’s needs, hardly in any state to wish anyone Happy Christmas etc. But if I had known you were going to ignore the attached medical certificate and stop paying leave from the 3rd then I would have made all efforts to return on that date. Thank you.

41    Mr Wallace’s response took issue with the notion that the letter from Ms Temple was a medical certificate. Mr Wallace went on to assert that “we called Fair Work Australia to ask their view on your attached letter” and “[t]hey indicated you were not eligible”. He also said that he had written to Mr Johnston and advised him that his holiday entitlements “were to be exhausted after Jan 3, 2014”. He claimed that his purpose was “to assist [Mr Johnston] in avoiding the issue [he] now appear[ed] to have”. He added:

You will be under enormous strain due to the need to additionally care for Jonathon, Henry and Erica around the clock. That’s in addition to the care for your wife, to run Jack to school & then collect him in the afternoons (after next week when school goes back obviously) and go to the grocery store! What an enormous burden! Still and all… you asked for it. It’s not like it happened all at once… instead happening basically every year for the past four years. Are you on contraception yet? If not then you’ll obviously be having more!

42    The final paragraph reads as follows:

By the way, Ian Kerr calculated all of your entitlements not me. Ian says that your holiday entitlement were extended out to Jan 3, 2014 due to the three public holidays in the middle. As you said earlier … you value your family above your job & so decided that the job didn’t matter any longer so failed to call, text or email until 10 days after your holidays ran out. That’s just a simple case of abandoning your job. Whether you’ve done that on purpose or through negligence is not relevant.

43    Then at 10.48pm Mr Wallace sent Mr Johnston a lengthy email accusing him of being the author of his own misfortune, berating him for not using contraceptives and not seeking an abortion before disputing that he was entitled to be paid carer’s leave under s 97 of the FW Act because “[r]aising a small child doesn’t fit the definition of being an ‘unexpected emergency’” and the Act requires that either he or the children need to be injured before the section operates.

44    The following day Mr Johnston telephoned Mr Wallace, asking what was going on. Mr Wallace insisted he had abandoned his job and he had been paid “more than what [they] were going to pay [him]”. Mr Johnston denied that he had abandoned his job and asked whether he was “terminated”. In that event he asked Mr Wallace to provide a termination certificate so that he could “at least claim benefits”. Mr Wallace refused to send him the certificate. When Mr Johnston asked why, Mr Wallace replied: “Well I’d have to pay you about $7000 entitlements. You abandoned your job.”

45    A further exchange of emails followed, with Mr Wallace insisting that Mr Johnston’s contention that he was entitled to paid carer’s leave was misconceived and maintaining that he had abandoned his employment.

Preliminary applications

46    Before the hearing started, Mr Wallace sent an email to the Commission, requesting an adjournment in order to obtain legal representation. That application was refused. The Senior Deputy President considered that he had had ample time to arrange for legal representation. Mr Wallace applied for the application to be summarily dismissed as an abuse of process under s 587 of the FW Act. An interlocutory application had apparently been filed. The Senior Deputy President declined to entertain it. He explained to Mr Wallace (at PN93) that he had a fundamental misunderstanding of the legislation and (at PN235) that the matters raised in the application could only properly be considered after he had heard the evidence. He said that it did not provide “a knock-out punch”. Mr Wallace complained that his interlocutory application had been ignored and pressed for an adjournment (at PN241). He continued to remonstrate with the Senior Deputy President about his handling of the summary dismissal application and the application for an adjournment (PN253–PN257).

The first day of the hearing

47    Mr Johnston’s statement was tendered in evidence and Mr Johnston was cross-examined by Mr Wallace. The cross-examination did not challenge any of the evidence concerning the circumstances in which the employment came to an end. It focussed almost entirely on events that took place afterwards.

48    The cross-examination was punctuated by repeated complaints about the way in which the summary dismissal application had been handled and pleas for an adjournment. Finally, when it became clear that the case could not complete in a day, the Senior Deputy President stood over the hearing to 12 August 2014. Mr Wallace raised no objection to that course.

The second day of the hearing

49    The hearing resumed, as scheduled, on 12 August 2014. It began badly. Mr Wallace insisted that he had to attend a medical appointment in Southport at 11.00am for “skin cancer surgery”. Notwithstanding his failure to raise the matter on the previous occasion or, indeed, it seems on the material before the Court, at any time beforehand, he claimed that the appointment had been organised before the hearing started and that the Senior Deputy President was aware of that. He repeatedly accused the Senior Deputy President of bias and misconduct.

The evidence proffered by MTGI

50    Mr Wallace did not give evidence or submit a statement of his own. On the morning of the hearing on 12 August 2014 a statement from Mr Kerr was forwarded to the Commissioner’s chambers and Mr Wallace tendered it over Mr Johnston’s objection. Mr Kerr stated that he was not a director of the company, an executive or an officer. A good deal of his statement contained unattributed hearsay, Mr Kerr’s opinions, and reports of what Mr Wallace told him, including complaints about the conduct of the proceeding. Much of it was inflammatory and apparently calculated to prejudice the Commission against Mr Johnston. Little of it was probative of the facts in issue. Significantly, Mr Kerr did not deny receiving the email from Mr Johnston in December 2013 to which Ms Temple’s letter was attached and, under cross-examination, he admitted to receiving the letter.

51    Under cross-examination Mr Kerr said that he would have forwarded both the email and the letter to Mr Wallace and that he probably did. He agreed that it was “fair to assume” that Mr Wallace saw their contents. He also told the Senior Deputy President that he did not respond to the email. He said that he never told Mr Johnston that his request for personal leave was denied and he was unaware that anyone else on behalf of MTGI had either, and when Mr Johnston did not return to work as he said he had expected in early January, he made no effort to contact him. He said that he was the only person who worked in the MTGI office and when Mr Johnston was working there, he and Mr Johnston were its only employees.

52    Written submissions had been filed by both parties. Mr Johnston’s solicitor also spoke to those submissions but there were no oral submissions on behalf of MTGI because, by then, Mr Wallace had left the hearing.

The costs application

53    The power to award costs in a matter arising under the FW Act is not at large, either in this Court or in the Commission. The Commission’s powers in connection with unfair dismissal proceedings appear in Pt 3-2 Div 5 of the Act. They include the power, conferred by s 400A, to order, upon the application of a party, that one party pay another party’s costs if the Commission is satisfied that the party against whom the application is made “caused those costs to be incurred because of an unreasonable act or omission [on its part] in connection with the conduct or continuation of the matter”. The Commission’s general powers in relation to costs are contained in Pt 5-1 Div 3 and specifically s 611. Section 611 relevantly provides:

(1)    A person must bear the person’s own costs in relation to a matter before the FWC.

(2)    However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a)    the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b)    the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note:     The FWC can also order costs under sections 376, 400A, 401 and 780.

(Original emphasis.)

54    Mr Johnston applied for costs under both sections. With respect to his application under s 611, he contended that MTGI acted vexatiously or without reasonable cause in response to his application or, alternatively, that it should have been reasonably apparent to MTGI that its response to the application had no reasonable prospects of success. With respect to his application under s 400A he submitted that MTGI’s unreasonable conduct during the proceedings caused costs to be incurred.

55    The costs application was listed for hearing in Sydney on 15 January 2015. The Commission made directions for the filing of submissions. Notwithstanding the listing, the Commission also invited the parties to indicate whether they were content to have the application dealt with on the papers. Submissions on behalf of Mr Johnston were filed a week after they were due, on 11 December 2014. MTGI emailed the Senior Deputy President’s chambers at 4.52pm on 14 January 2015 — the day before the hearing was due to start — attaching its submissions (nearly one month after they were due) and at the same time objecting to the late filing of Mr Johnston’s submissions. Mr Johnston’s lawyers were apparently agreeable to the determination of the matter on the papers. MTGI was not. It proposed that the hearing be adjourned, however, until MTGI’s lawyer was available and/or until the determination of the appeal, which had been lodged 10 days after Mr Johnston’s lawyers had filed the costs application and was pending at the time. The Senior Deputy President did not accede to either proposal, although he did decide to reserve his decision until after the appeal to the Full Bench had been determined.

56    The hearing went ahead, in accordance with the listing, in Sydney the following day. There was no appearance for MTGI, either in Sydney or in Brisbane, where the company was based. The Senior Deputy President caused inquiries to be made as to whether Mr Wallace attended the Brisbane registry. Upon being informed that he had not and having satisfied himself that Mr Wallace was aware of the hearing date, the Senior Deputy President proceeded with the hearing.

57    Shortly after the hearing concluded, Mr Wallace sent an email to the Senior Deputy President complaining about the lack of a reply to his email but acknowledging that the hearing was to begin at 10.00am Sydney time. Later that day he sent a further email complaining about what the Senior Deputy President described as “various abuses of process and bias in the way that the matter was conducted” as well as errors in the unfair dismissal decision.

58    The Senior Deputy President caused a reply to be sent to Mr Wallace explaining what had occurred and why, indicating that the transcript would soon be available and would be sent to him and giving him the opportunity to file further submissions once he received it. The transcript was duly dispatched but no further submissions were forthcoming.

The decisions of the Senior Deputy President

The interlocutory application for summary dismissal

59    The Senior Deputy President first dealt with the interlocutory application for summary dismissal. He said he was satisfied that there was no proper basis to grant the application. After referring to s 97 of the FW Act, he explained:

The circumstances in which the applicant in the present matter was seeking to take personal/carer’s leave were the hospitalisation of his wife and her premature baby in Sydney, some 2½ hours drive from their home in Bomaderry, and the need for the applicant to provide the primary care for his other four young children, aged 2, 3, 4 and 13 years, during his wife’s hospitalisation. In my view, the applicant in these circumstances was entitled to take personal/carer’s leave in order to provide care and support for members of his immediate family (the four young children) who required that care because of an unexpected emergency affecting them (the prolonged hospitalisation of their mother, following the premature birth by caesarean operation). The respondent was made aware of the circumstances relating to the proposed taking of personal/carer’s leave and no issue was raised at the time in relation to the notice given by the applicant.

60    The Senior Deputy President proceeded to consider another argument advanced in support of the interlocutory application: that MTGI was dismissed as trustee for the MTGI Trust before the proceedings began and that Mr Johnston was improperly using the proceedings to improve his commercial interests with other groups. The Senior Deputy President said that there was no evidence to support the argument. He also said that there were other reasons for rejecting MTGI’s application, including the merits of the unfair dismissal application. He concluded that MTGI had not demonstrated any reasonable basis for the Commission not to hear and consider Mr Johnston’s application.

The unfair dismissal application

61    The Senior Deputy President was satisfied that Mr Johnston did not abandon his employment. He said that there was nothing about his conduct indicative of an intention to do so. Rather, he took approved annual leave and then relied on the letter from the hospital to seek to transfer that leave to personal leave which he had accrued. He was never advised that his request was denied or that MTGI would consider that he had abandoned his employment if he did not return to work on 6 January. He observed that MTGI’s conduct was inconsistent with its later claim that Mr Johnston had abandoned his employment, noting that the claim was not made until after Mr Johnston had returned to work and queried the pay he had received during his absence. In these circumstances, he found that MTGI initiated the termination of the employment relationship (and therefore dismissed Mr Johnston).

62    The Senior Deputy President then proceeded to consider the matters listed in s 387 of the FW Act, finding that:

    there was no valid reason for the dismissal;

    Mr Johnston had not received any notice of the reason or reasons for the dismissal before it took effect;

    he was not given an opportunity to respond;

    no meeting was convened to discuss the termination;

    while there was some material relating to unsatisfactory performance, the dismissal did not relate to unsatisfactory performance, and, to the extent that MTGI had complaints about Mr Johnston’s failure to communicate during the period of approved leave, there was no evidence that the complaints were conveyed to him or he was warned about the matter;

    no procedures were apparently in place for the proper investigation and determination of issues relating to the conduct and performance of employees; and

    MTGI had no human resources specialists nor any human resources expertise.

63    The Senior Deputy President concluded that the termination of Mr Johnston’s employment was harsh, unjust or unreasonable. In essence, his reasons appear at [60]:

In the circumstances of this matter, the failure of the applicant to return to work until some 10 days after his accrued annual leave had run out did not provide a valid reason for dismissal. The respondent was aware of the reasons for the applicant’s absence and was also aware of the request for a period of personal/carer’s leave whilst his wife and newborn baby were hospitalised in Sydney. I find that the termination of the applicant’s employment by the respondent in such circumstances was harsh. I also find that the dismissal was unreasonable as the applicant was given no prior notice by the respondent that it would treat him as having abandoned his employment if he did not return to work soon after 3 January. It was also unreasonable because it would seem that the applicant was entitled to take some of his accrued personal/carer’s leave in the circumstances, had this entitlement not been denied by the respondent. Further, the failure of the respondent to provide a proper opportunity for the applicant to answer or to respond to the allegations and complaints made against him also supports a finding that the dismissal was unfair.

64    The Senior Deputy President considered that, as the relationship between the parties had broken down, reinstatement was inappropriate (a precondition to the award of compensation: s 390(3)(a)) and compensation of 20 weeks’ pay should be ordered. In doing so, he had regard to the mandatory considerations in s 392(2) of the Act.

65    After the decision was published, Mr Johnston applied for costs under ss 400A and 611 of the Act.

The costs decision

66    The Senior Deputy President first considered whether he could and should make an order under s 611(2). He observed that “an assessment of whether a response to an unfair dismissal application was made ‘vexatiously or without reasonable cause’ or had ‘no reasonable prospects of success’ should be undertaken with caution, particularly where there are disputed issues of fact or questions of law involved”. He said that it might generally be expected that costs will rarely be ordered in proceedings before the Commission. He then referred to a number of authorities on the meaning of the terms and expressions in s 611(2) before stating his conclusions at [34]:

I agree with the applicant’s submissions that the respondent’s actions during the proceedings were unreasonable and led to costs being unnecessarily incurred. In particular, I am satisfied that: the respondent responded to the unfair dismissal application vexatiously; that it should have been reasonably apparent to the respondent that its response to the application had no reasonable prospect of success; and that the respondent caused costs to be incurred because of unreasonable acts and omissions in connection with the conduct of the proceedings. I am not satisfied that the whole response filed by the respondent was “without reasonable cause”, although some aspects of the case put by the respondent might be described as “untenable” or “groundless”.

67    The reference to “the applicant’s submissions” is presumably a reference to the submissions summarised at [19] of the Senior Deputy President’s reasons. They were that MTGI:

    misled the Commission by suggesting that it had engaged the services of a lawyer and making representations to the Commission about the lawyer’s availability when no lawyer had been retained;

    prolonged the proceedings by the repeated interruptions of Mr Wallace in relation to his interlocutory application for summary dismissal, despite rulings by the Commission that the application “would be dealt with in the context of the proceedings”;

    made submissions in support of the interlocutory application which were “manifestly groundless, unsupported by any evidence and contradicted by the evidence of its only witness”; and

    failed to adduce evidence in support of any aspect of its case or to deal with “the main facts in issue”.

68    The Senior Deputy President said that in reaching these conclusions he had had regard to the totality of MTGI’s response to Mr Johnston’s unfair dismissal application and its conduct during the course of the consideration by the Commission of that application. That included failing to comply with directions for the filing of submissions and witness statements, making allegations and complaints about the conduct of the proceedings and of Mr Johnston’s solicitors (which, by inference, the Senior Deputy President considered unjustified, if not unfounded), misleading the Commission and Mr Johnston about having lawyers acting for him or having been given legal advice about the proceedings, making and then unreasonably withdrawing offers of settlement, seeking to have the proceedings adjourned without due cause, and generally seeking to delay and frustrate the proper hearing process — all matters to which the Senior Deputy President had referred in [4] of his first decision. At that time he had also observed that:

The hearings of this matter were unnecessarily protracted and the determination of the matter [made] more difficult largely as a result of the conduct of the respondent [MTGI] and its representative [Mr Wallace].

69    The Senior Deputy President added that he had had particular regard to the failure of MTGI to provide evidence in support of its submissions and response, the general conduct of MTGI and its representative in the course of the proceedings, including before, during, and after the formal hearings, and the fact that Mr Wallace had misled the Commission and Mr Johnston about having legal representation (the putative basis for adjournment applications and for refusing to give Mr Johnston details of supposed settlement offers).

70    The Senior Deputy President concluded that there was “clear evidence” of unreasonable conduct on the part of MTGI. He said that MTGI’s behaviour crossed the line from a robust defence to an attempt to harass, intimidate or embarrass both Mr Johnston and the Commission in such a way as to prejudice the fair hearing and determination of the application. Consequently, he found that MTGI responded to the application vexatiously, or at least caused Mr Johnston to incur costs because of its unreasonable acts in connection with the conduct of the matter.

71    The Senior Deputy President was also satisfied that it should have been reasonably apparent to MTGI that its response to the application had no reasonable prospect of success, given that it adduced no evidence in support of its case. He added that the initial defence relating to Mr Johnston’s entitlement to personal/carer’s leave was based on “a questionable interpretation of the relevant legislative provisions”, as had been pointed out to MTGI at an early stage of the proceedings.

72    Finally, the Senior Deputy President said that he was not persuaded by the submissions of MTGI that it would be inappropriate in the circumstances to make a costs order. He considered, contrary to the submissions, that MTGI had not shown that Mr Johnston sought to mislead the Commission in his testimony in any significant respect or that either he or his solicitor engaged in improper or unreasonable conduct. He also rejected the proposition that making an order would be tantamount to denying MTGI the opportunity to defend itself in the unfair dismissal application, hearkening back to his earlier finding that the response went beyond what might be described as a robust defence.

73    The Senior Deputy President then considered the question of quantum. He said that the amount of costs sought by Mr Johnston was considered in the hearing on 15 January and that, after being requested to do so, Mr Johnston provided further details in an email forwarded to the Commission and MTGI’s solicitors that afternoon. The Senior Deputy President said that the email claimed costs in the amount of $16,939.71 and that he had received no submissions regarding the amount from MTGI.

74    The Senior Deputy President observed that the Commission’s discretion is broad, provided it is satisfied that the circumstances referred to in ss 400A(1), 401 or 611(2) have arisen. In this regard he referred to Stanley v QBE Management Services Pty Ltd [2012] FWA 10164 and other authorities. He noted that by s 400A the Commission is empowered to order costs against a party who causes costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter, and said that it “would seem almost axiomatic” that such acts or omissions would provide a basis for an order of costs on an indemnity basis.

75    The Senior Deputy President then turned to the schedule of costs, prescribed by s 403 of the FW Act and contained in Sch 3.1 of the Fair Work Regulations 2009 (Cth). He noted the variety of ways in which the schedule specifies costs in relation to particular matters. He also noted that, as s 403(2) provides, the schedule is not a rigid prescription of the costs that may be ordered in a proceeding but sets upper limits on the costs that may be ordered in relation to the particular items that appear within it.

76    The Senior Deputy President observed that neither party had presented detailed submissions regarding either the costs that had been incurred or the amount that should be awarded. Nevertheless, he was satisfied that Mr Johnston’s legal costs were “significant”. He said that the costs included those relating to the general care and conduct of the matter, such as dealing with and responding to the numerous emails sent to the Commission by MTGI and dealing with the allegations MTGI raised, and those associated with the appearances of Mr Johnston’s solicitor in the hearings. He repeated that he was satisfied that the costs were incurred due to MTGI’s unreasonable conduct in the proceedings and its pursuit of a response which had no reasonable prospect of success.

77    The Senior Deputy President concluded that it was appropriate to make a lump-sum award of costs. He said that this would avoid the “expense, delay and possible aggravation” that might be involved in taxation and assessment of costs. Having regard to the difficulty of the matter and the complicated and protracted nature of the unfair dismissal proceedings, he considered that an award of approximately half the costs claimed by Mr Johnston was “reasonable and fair in the circumstances of the case”. Accordingly, he ordered that within 21 days MTGI pay $8,470 towards Mr Johnston’s costs.

The relevant powers of the Full Bench

78    If (as appears to have been accepted) MTGI was a person aggrieved by the decision of the Senior Deputy President, it was entitled to appeal, but only if it received the permission of a Full Bench of the Commission: s 604(1), read with s 613. The Full Bench must not grant permission to appeal unless it considers that it is in the public interest to do so: s 400(1) (read with s 613). The determination of that question involves a broad evaluative judgment: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] (Buchanan J).

79    An appeal before the Full Bench is in the nature of a rehearing but the appellate powers may only be exercised if the Full Bench is satisfied that the primary decision-maker was in error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481. Those cases were concerned with s 45 of the Workplace Relations Act 1996 (Cth), the statutory predecessor of s 604, but the provisions are not materially different. In an appeal from a decision in an unfair dismissal action there is an additional hurdle. To the extent that the appeal is on a question of fact, the appeal can only be made on the ground that the decision involved a significant error of fact: FW Act, s 400(2).

80    In Wan the Full Court (Spender, Kiefel and Dowsett JJ) said:

Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.

81    In DP World Brisbane v Maritime Union of Australia [2013] FWCFB 8556; 237 IR 180 at [57], a Full Bench of the Commission said that in view of the similarities with s 45 of the WR Act, these observations were “apposite” to the grant of permission to appeal under s 604 of the FW Act. We respectfully agree.

82    It is also important to note that an application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal: cf. Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46; 108 ACSR 445 at [9]–[10] (Flick J) and the authorities referred to there.

The appeals to the Full Bench

83    The notice of appeal was lengthy. It was also rambling and repetitive, strident in tone, and replete with escalating allegations of wrongdoing against Mr Johnston. It was in the nature of a diatribe, rather than a pleading. To the extent that it was critical of the Senior Deputy President, it alleged that the first decision (“the dismissal decision”) was “fatally flawed” because Mr Johnston had “plainly abandoned his employment”. It complained of errors in relation to the way the interlocutory application for summary dismissal had been dealt with and various factual errors. It made numerous assertions unsupported by evidence.

The decisions of the Full Bench

84    In its decision on the application for permission to appeal from the dismissal decision the Full Bench began its reasons by referring to the relevant provisions of the FW Act. It noted that it is clear from s 604 and s 400 that “the appeal process … does not provide an opportunity for a party to re-argue a case, and have it determined by an Appeal Bench afresh, as if the decision of the single member at first instance had not been made”. Rather, the Full Bench will only do so if it is satisfied that permission to appeal should be granted because it is in the public interest to do so and the decision appealed reflects error and, in a case of this nature, where the appeal concerns a question of fact, a significant error of fact.

85    The Full Bench said that it was hard to identify clearly the grounds upon which MTGI relied but said that “they appear[ed] to be twofold”: first, that the Senior Deputy President was wrong to conclude that Mr Johnston had been dismissed and, secondly, that the Senior Deputy President wrongly failed to have regard to Mr Johnston’s “serious misconduct”.

86    The Full Bench held that the findings the Senior Deputy President made concerning the question of whether Mr Johnston had been dismissed were “clearly open” on the evidence. On the second ground, the Full Bench noted that “the Senior Deputy President was not persuaded on the basis of the evidence that there was any significant substance in the assertions and complaints made” and held that that conclusion was also open on the evidence. The Full Bench said that it could detect no significant error in the findings. It considered that essentially MTGI was seeking to re-agitate the case presented below. The Full Bench noted that Mr Wallace made a large number of factual assertions from the bar table, both before it and below, but that the only sworn evidence was that which was given by Mr Johnston and Mr Kerr, and that that was the evidence upon which the Senior Deputy President properly relied.

87    In substance, then, the Full Bench denied permission to appeal because it was not satisfied that there was an arguable case of error. In the light of its conclusions, it is also apparent, although it did not say so, that it was not satisfied in these circumstances that the public interest called for a different outcome.

88    In its second decision (the application for permission to appeal from the costs decision) a differently constituted Full Bench noted that it must not grant permission to appeal unless it was satisfied that it was in the public interest to do so and, where findings of fact were challenged, an appeal could “only be made relative to ‘significant error of fact’”. The Full Bench referred to the decision in GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27] in which some circumstances answering the public interest criterion were identified. The Full Bench observed that, unless an arguable case of appealable error is established, the public interest criterion will rarely be met “because an appeal cannot succeed unless error is established”.

89    The Full Bench considered the various arguments advanced by MTGI, this time through counsel, as to why it was in the public interest to grant permission to appeal and rejected each of them, concluding that “the matter [was] not invested with any public interest”. It gave several reasons. First, it was not satisfied that MTGI had demonstrated any error in the Senior Deputy President’s decision such that it could be said that it “manifested an injustice” or that the result was “otherwise counter intuitive”. Second, it did not consider that the appeal raised any issue of importance and general application. Third, this was not a case requiring the guidance of the Full Bench because of a diversity of first instance decisions. Fourth, no novel or exceptional issues were raised.

The grounds of the application for review

90    MTGI challenged the decision of the Full Bench to refuse permission to appeal from the dismissal decision on the following grounds:

(1)    The Full Bench “failed to correct the errors of procedural fairness of the Senior Deputy President”.

(2)    The Full Bench erred in not finding that the Senior Deputy President was wrong to conclude that Mr Johnston’s employment had been terminated at the initiative of MTGI and that it was not reasonably open to find on the facts that there was a dismissal (this is said to have been an error of jurisdiction because it is a jurisdictional fact whether Mr Johnston had been dismissed).

(3)    The Full Bench erred in not finding that the Senior Deputy President’s construction of s 97 of the FW Act was wrong, which led him into making an error of law.

(4)    The decision of the Full Bench not to grant permission to appeal was unreasonable in that it reviewed only two grounds of appeal and did not “fully consider” the matters raised on appeal.

91    On the eve of the hearing, however, MTGI notified that grounds 2 and 3 would not be pressed.

92    MTGI challenged the decision refusing permission to appeal from the costs decision on these bases:

(1)    It was in the public interest to grant permission to appeal because it is in the public interest to establish how the Commission should award costs based on the criteria in the Act.

(2)    The Full Bench erred in law by not requiring the Senior Deputy President to separate the costs awarded under s 611 from the costs awarded under s 400A.

(3)    The Full Bench erred in failing to find that the Senior Deputy President erred in taking into account a number of matters which were irrelevant to the question of whether MTGI’s opposition to the application was vexatious or without reasonable cause.

(4)    The Full Bench erred in failing to correct “the manifest injustice” of the award of costs.

(5)    The Full Bench erred in failing to find that the Senior Deputy President erred in law in his approach to “vexatious” and “without reasonable cause” and applied the wrong test.

(6)    The Full Bench erred in not finding that the Senior Deputy President erred by awarding costs on the limited evidence before him, which was unreasonable and a jurisdictional error.

93    On the eve of the hearing MTGI also advised that it would not press 1, 4 and 5 of the application relating to the second decision.

94    Written submissions were filed by both parties (on 11 July and 20 July respectively) but on the morning of the hearing, and without notice either to the Court or to Mr Johnston’s lawyers, MTGI’s counsel, Mr Duc, produced fresh submissions to replace those which had been filed. While they were said to address only the grounds which were pressed, in at least one respect they went further, submitting, in effect, that the Full Bench misunderstood its statutory function by failing to “evaluate whether there was an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits”. This argument was not advanced in the filed submissions, leave was not sought to amend the statement of claim to raise the point, and Mr Johnston was given no advance notice of the argument. In the circumstances it would be both unreasonable and unfair to Mr Johnston to entertain them and we decline to do so.

The scope of the current application

95    There is no right of appeal against a decision of the Full Bench, hence the application under s 39B. Paragraph 39B(1A)(c) grants the Court jurisdiction in any matter arising under a law made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Section 562 of the FW Act confers jurisdiction on this Court in relation to any matter arising under that Act. Section 23 of the Federal Court of Australia Act 1976 (Cth) in turn gives the Court, in relation to matters in which it has jurisdiction, the power to issue or direct the issue of writs of such kinds as it thinks appropriate. In effect, the relief MTGI seeks is writs in the nature of certiorari to quash the two decisions of the Full Bench and mandamus to compel the Full Bench to reconsider its decisions according to law. As no claim is made that there was error of law on the face of the record, relief is only available if MTGI can establish that the decisions were affected by jurisdictional error.

The application for review of the first Full Bench decision

96    The first ground is that the Full Bench fell into jurisdictional error by failing to correct the errors of procedural fairness below. It has no merit.

97    The submissions in support of it nominate a number of matters said to amount to a failure by the Senior Deputy President to afford procedural fairness to MTGI. Little was said to persuade the Court that either individually or collectively these matters amounted to a denial of procedural fairness. The case was put as though it was self-evident.

98    MTGI submitted that a failure to afford procedural fairness to a party is a jurisdictional error. Of that there can be no doubt. See, for example, Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82. But no relief was sought against the Commission in respect of the decision of the Senior Deputy President (contrast Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148). The question is whether the Full Bench fell into jurisdictional error. Nowhere in either incarnation of its written submissions on this ground did MTGI allege (at least in terms) that it did.

99    In any case, the notice of appeal to the Full Bench did not contain any allegation that MTGI had been denied procedural fairness by the Senior Deputy President. Nor was the Court taken to any argument put to the Full Bench that could conceivably amount to a suggestion of procedural unfairness. Putting aside the fact that the function of the Full Bench in determining whether to grant permission to appeal is not to correct error, how could it be an error on the part of the Full Bench, let alone a jurisdictional error, for it to fail to correct an error, when the prospective appellant did not complain of any such error?

100    In oral argument, Mr Duc submitted that the Full Bench had an obligation to assist Mr Wallace to identify issues not raised in the notice of appeal “that might have come to their attention”.

101    The gravamen of the complaint is that the Full Bench erred by failing to see for itself that the Senior Deputy President had conducted the proceeding below so as to deny MTGI procedural fairness and then invite Mr Wallace to amend the notice of appeal to raise such a ground or at least asking him whether he wished to do so. The foundation for the argument is that Mr Wallace was unrepresented and MTGI’s position was therefore that of a self-represented litigant. While Mr Duc resisted this characterisation of his argument, that was its purport.

102    The argument must be rejected. While a tribunal has a duty to assist a self-represented litigant, the duty does not extend to making a case for the litigant. In Hamod v New South Wales [2011] NSWCA 375 at [312] the NSW Court of Appeal (Beazley JA, with whom Giles and Whealy JJA agreed) observed:

Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: M[a]cPherson [v The Queen (1981) 147 CLR 512] per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

103    Both administrative decision-makers and judges are obliged to accord litigants procedural fairness. That said, the duties of administrative decision-makers are not necessarily the same in nature or content as the duties owed by judges: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (Mortimer J) at [53]. Be that as it may, these principles apply equally to the Commission. Even if the Full Bench perceived that there was an arguable case that MTGI had been denied procedural fairness at first instance, it was entitled to proceed on the assumption that MTGI did not wish to revive the matter on appeal. As Mason P observed in Malouf v Malouf [2006] NSWCA 83 at [94] (in a passage not included in the report of the judgment at (2006) 65 NSWLR 449), “[t]he restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented”.

104    Mr Duc relied on statements made in Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986) which were cited with approval in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [28]. The first was a statement by Samuels JA (at 14):

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

105    The second was an observation of Mahoney JA (at 27):

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.

106    These propositions refer to the obligations of a court but we will assume that they apply equally to the Commission. Certainly, Mr Johnston did not submit otherwise. Nevertheless, neither statement assists MTGI. For the Full Bench to have intervened in the way Mr Duc contended, would have given MTGI an advantage which it would not have enjoyed had it been represented.

107    Furthermore, the extent to which a tribunal should assist a litigant in person depends on the nature of the case, the litigant, and his or her intelligence and understanding of the case: Abram v Bank of New Zealand [1996] ATPR ¶42-340 at 42-347, cited with approval by the Full Court in Minogue at [27].

108    Mr Wallace was no simpleton. He was the managing director of a telecommunications company. While he complained about the conduct of the proceedings before the Senior Deputy President, it was his choice not to persist with the complaint on appeal.

109    Moreover, procedural fairness cuts both ways. To impose upon the Full Bench a duty to identify a case which is not apparent on the face of the notice of appeal would potentially deny procedural fairness to the other party.

110    This ground must be dismissed.

111    The essence of the second ground which was pressed is that the Full Bench failed to attend to several grounds of appeal, limiting its consideration to only two. MTGI alleged that for this reason the decision was unreasonable and the Full Bench misconceived its duty.

112    It may well be that a Full Bench which declines permission to appeal on the basis that an appeal has no apparent merit but ignores several grounds of appeal commits a jurisdictional error. That would certainly be the case if it had disposed of an appeal in this way. This would amount to a failure to complete the jurisdictional task or a constructive failure to exercise its jurisdiction: cf. Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136. But that is not what happened here.

113    In his written submissions Mr Duc did not identify which grounds of appeal had been overlooked. In oral argument Mr Duc submitted that there were six paragraphs in the notice of appeal which answered this description. Ultimately, however, he retreated from this position, declining to press the first five. The singular “ground” relied on was in the following terms:

[48]    erred in failing to point out the substantive failure in the summing up by His Honour in omitting where the Applicant admitted to misleading the Commission whilst under Oath, on at least three occasions, in relation to income received from his additional (new) employment and additional (existing) employment. The Applicant is a profoundly un unreliable witness in so far that he mislead the Commission on several occasions as mentioned, perpetrated a fraud via omission on the Respondent as mentioned, as well as disingenuously claiming in his originating application to being “unemployed” (this may explain why he misled the commission about income earned), making a mockery of the proceedings via stating that “I have a Lamborghini parked out the front” during examination, refused to answer the question about receiving funds from overseas via his wife’s Indonesian credit card in a bid to avoid detection.

114    These were said to be “credit issues” which should have been identified as an appeal point.

115    The reference to [48] is to paragraph 48 of the Senior Deputy President’s decision:

Although in the course of the proceedings and subsequent e-mails the respondent put forward a range of other reasons which were said would justify the termination of the applicant’s employment, these reasons have the hallmark of an endeavour, after the event and after the unfair dismissal application was made, to bolster a case by making assertions and complaints about the applicant and his work performance. It is noted that some of these matters were put to the applicant during cross-examination by Mr Wallace. However I am not persuaded on the basis of that evidence that there is any significant substance in the assertions and complaints made. Further it is noted that no evidence was presented in support of the other explanations for the termination of the applicant’s employment. Despite indications before the hearings that the respondent would present evidence from several witnesses, the only evidence led was that from Mr Kerr, the respondent’s bookkeeper, who had limited knowledge and responsibility in terms of the employment and supervision of the applicant.

116    As the Full Bench observed, it is indeed difficult to identify grounds of appeal. The notice of appeal is hard to follow. This is not uncommon with litigants in person and it is not only permissible, but it is often necessary, for courts and tribunals alike to attempt to distil the grounds from a litany of complaints. This is what the Full Bench did in the present case. In so doing, we do not consider that the Full Bench fell into jurisdictional error. It was far from clear that Mr Wallace’s complaint was concerned with credit, as opposed to misconduct. In any case, the matters raised by Mr Wallace in the above-mentioned paragraph were no more than allegations. As Mr Duc conceded, they were unsupported by evidence. They were not accepted or adopted by Mr Johnston, nor proved by Mr Wallace.

The application for review of the refusal of permission to appeal from the costs decision

117    This, too, is without merit. It is little more than an attempt to run an appeal when no appeal is available.

118    The first ground is that the Full Bench erred in law by not requiring the Senior Deputy President to separate the costs awarded under s 611 from the costs awarded under s 400A.

119    Mr Duc submitted that costs were apparently awarded on both bases but that it was a jurisdictional error for the Senior Deputy President to do so because he had asked himself the wrong question. He contended — without reference to authority — that the right question was: “If costs are to be awarded, what costs are attributable to the relevant heads of power?” He submitted, in effect, that, if MTGI’s conduct were unreasonable at a certain time and that unreasonable conduct “caused costs to be awarded”, then the Senior Deputy President should have identified the time and awarded costs from that point, “not the whole of the case”. He also submitted that if MTGI’s response were “frivolous, vexatious, without reasonable cause or had no reasonable prospects of success, then a more detailed consideration of why [MTGI] should have had this view should have been detailed by the Senior Deputy President”. The Full Bench is said to have erred in failing to correct both these errors.

120    The first point to make is that it is immaterial if the Senior Deputy President fell into jurisdictional error as no application has been made for relief arising out of his decision. The question is whether the Full Bench did.

121    While “the metes and bounds” of jurisdictional error cannot be marked (Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [71]), the Full Bench would have committed a jurisdictional error if it had misconceived its role or misunderstood the nature of its jurisdiction or misconceived its duty or failed to apply itself to the question the Act prescribes or misunderstood the nature of the opinion it had to form: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ); Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 at [47]–[59] (Buchanan J, Allsop CJ and Siopis J agreeing at [1] and [2]). As Buchanan J explained in Toms at [59]:

The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.

(Original emphasis.)

122    Secondly, the task of the Full Bench was to determine whether it was in the public interest to permit MTGI to appeal. That was the task it undertook. It did not misconceive its role or misunderstand the nature of its jurisdiction. Nor did it fail to apply itself to the relevant question or misunderstand the nature of the opinion it was to form. It was not entitled to correct errors by the Senior Deputy President unless it was satisfied that it was in the public interest to do so. Even if the Full Bench erred because it wrongly failed to detect an apparent error on the part of the Commission, that would have been an error within jurisdiction: see Coal and Allied at [32].

123    In any event, we do not consider that in the particular circumstances of this case, at least, it was necessary (and certainly not as a matter of law) for there to be any apportionment of costs to one head of power or another. The Senior Deputy President determined that there was power to award costs under both heads. In oral argument this point was reduced to a contention that the Senior Deputy President erred by failing to give adequate reasons. How the Full Bench could be said to have made a jurisdictional error in failing to recognise, let alone correct, this supposed error was never explained.

124    The second ground of review pressed by MTGI was that the Full Bench erred in failing to find that the Senior Deputy President erred in taking into account three matters which were irrelevant to the question of whether MTGI’s opposition to the application was vexatious or without reasonable cause. The three matters were:

(1)    MTGI’s failure to provide evidence in support of its submissions and response;

(2)    the general conduct of MTGI and Mr Wallace in the course of the proceedings; and

(3)    MTGI misleading the Commission and Mr Johnston about alleged legal representation.

125    MTGI submitted that none of these matters either individually or collectively could have justified a costs order on the ground that the response was vexatious because:

(1)    MTGI was not asked or invited to give evidence and was denied an adjournment;

(2)    the Senior Deputy President should have identified any conduct or behaviour by MTGI which could justify costs; and

(3)    the conduct was of an unrepresented party struggling with the technicalities of the Commission and procedure.

126    There are several difficulties with this submission.

127    First and foremost, as we have already observed, the Full Bench determined the matter on the basis that it was not satisfied that it was in the public interest for it to hear the appeal. If it had done as MTGI submitted it should, on the assumption that these matters were raised by the notice of appeal, it would have fallen into jurisdictional error for it would have proceeded to deal with the substance of the appeal: see Gregory v Qantas Airways Ltd [2016] FCAFC 7.

128    Secondly and in any event, we do not accept that any of these matters was irrelevant. The absence of evidence to support its response was undoubtedly relevant to the question of whether it should have been reasonably apparent to MTGI that its response had no reasonable prospects of success. As we read the Senior Deputy President’s decision, the findings in relation to the conduct of MTGI and Mr Wallace relate to the question of whether costs could and should be ordered under s 400A.

129    Thirdly, the proposition that MTGI was not asked or invited to give evidence is manifestly unsound. MTGI was ordered to file witness statements and Mr Wallace was told that he could give sworn evidence.

130    Fourthly, the Senior Deputy President did identify the conduct which justified the costs order. Moreover, it is plain that he did not regard it as merely that of an unrepresented party “struggling with the technicalities of the Commission and procedure”. He found Mr Wallace was querulous, deceitful and obstructive.

131    The final ground of review was that the Full Bench fell into jurisdictional error by unreasonably failing to find error in the Senior Deputy President’s decision to award costs on the basis of “a single line email stating the costs [Mr Johnston claimed]”.

132    This ground is baseless. The alleged error on the part of the Full Bench is in not finding that the Senior Deputy President erred in this respect. For the reasons given above at [127], this was no error by the Full Bench. Furthermore, the relevant ground of appeal was:

An unsuccessful litigant must be afford[ed] the opportunity to peruse the costs.

133    How could the Full Bench have erred in not making a finding they were never invited to make? In any case, it is impossible to understand how the Senior Deputy President’s decision could be said to be unreasonable when, as the Senior Deputy President noted, he had received no submissions from MTGI about the amount of costs Mr Johnston had sought and, even so, awarded half the sum claimed.

134    The argument below was that the Senior Deputy President had denied MTGI procedural unfairness. That proposition was swiftly abandoned (at PN56). Mr Duc then argued that it was mandatory for a bill of costs to have been prepared. How that proposition fell within the ground of appeal is obscure.

Conclusion

135    None of the grounds is made out. None reveals jurisdictional error on the part of either Full Bench. Accordingly, the application for review must be dismissed.

136    Any application for costs should be filed and served within 14 days, supported by submissions and, if appropriate, affidavit evidence. In the event that an application is filed, submissions in response and, if appropriate, affidavit evidence should be filed and served within a further 14 days of receipt. Any reply should be filed and served within 7 days thereafter. The application will be considered on the papers.

Associate:

Dated:    18 October 2016