Baker v Salva Resources Pty Ltd [2011] FWAFB 4014 (27 June 2011) FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604 - Appeal of decisions A Baker v Salva Resources Pty Ltd (C2011/111) SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT DRAKE COMMISSIONER HARRISON MELBOURNE, 27 JUNE 2011 Appeal against decision [2011] FWA 1289 of Hamberger SDP at Sydney on 28 February 2011 in matter number C2010/5919 - application for costs - dismissed. [1] This is an application, pursuant to s.611 of the Fair Work Act 2009 (the Act), by Salva Resources Pty Ltd (Salva) in respect of an appeal by Ms A Baker against a decision of Senior Deputy President Hamberger on 28 February 2011. 1 His Honour’s decision concerned an application to extend time for the making of an application under s.365 of the Act. [2] We declined to grant permission to appeal and dismissed the appeal in a decision of 6 May 2011. 2 [3] On 26 May 2011 Salva filed in Fair Work Australia an application for costs. On 30 May 2011, the Full Bench directed Salva to file full submissions in support of its costs application. Those submissions were received on 17 June 2011 in accordance with our direction. [4] Salva submitted that Ms Baker failed to establish that there was a significant error of fact, as required by s.400(2) of the Act, and simply reiterated the grounds upon which the original application for an extension of time was based. Salva submitted that Ms Baker’s appeal was made, inter alia, “to give clarity and reiterate grounds that (Senior) Deputy President Hamberger may have had an oversight on” and “. . . the dismissal was due to not enough persuasion of my case . . .”. Salva further submitted that Ms Baker failed to establish that the appeal was in the public interest. [5] Salva submitted, therefore, that upon the facts apparent to Ms Baker at the time of instituting the appeal, it should have been reasonably apparent to her that she had no prospects of sucess and that the appeal was manifestly untenable and groundless. It submitted that where this was apparent, the Full Bench has discretion to determine whether an order for costs is justified. [6] Salva submitted that in circumstances where the Full Bench is persuaded that the appeal is unreasonably brought and caused costs to be incurred by it, the Full Bench should exercise its discretion in favour of Salva. [7] Salva also submitted that an order be made for costs inccurred by Salva in bringing its costs application. Consideration [8] Section 611 of the Act provides that: “(1) A person must bear the person’s own costs in relation to a matter before FWA. (2) However, FWA may order a person (the first person ) to bear some or all of the costs of another person in relation to an application to FWA if: (a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) FWA 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. (3) A person to whom an order for costs applies must not contravene a term of the order.” [9] Salva has relied upon s.611(2)(a) of the Act to support its application, arguing that it should have been reasonably apparent to Ms Baker that her appeal had no reasonable prospect of success. [10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed: “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; 3 and a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless 4 or so lacking in merit or substance as to be not reasonably arguable. 5 [11] In support of its application Salva relied upon the expression of the grounds for appeal contained in the application of Ms Baker: “to give clarity and reiterate grounds that (Senior) Deputy President Hamberger may have had an oversight on”. [12] This expression of the basis of the appeal reflects the lack of familiarity Ms Baker had with the statutory basis for an appeal within the Act and the absence of expertise in industrial law. [13] However, when the basis of Ms Baker’s appeal is considered by reference to her submissions, it is clear that her appeal was based primarily on the proposition that Senior Deputy President Hamberger had no or insufficient regard to her medical circumstances in reaching his decision, referencing documentation submitted in that regard. Ms Baker concluded in her written submissions in the appeal that the evidence should have provided enough material to support a reasonable explanation of her delay in making her application and contending that her medical condition “has not been taken into account by Senior Deputy President Hamberger”. [14] Whilst we did not accept that contention and dismissed the appeal, the proposition that Senior Deputy President Hamberger erred, by having no or insufficient regard to the medical evidence relied upon to support Ms Baker’s case as to a reasonable explanation for the delay, was not manifestly untenable or so lacking in merit or substance as to be not reasonably arguable. [15] Having considered the full written submissions of Salva in support of its costs application, we are not satisfied that it should have been reasonably apparent to Ms Baker that her appeal had no reasonable prospect of success. In those circumstances, it is not necessary to seek submissions from Ms Baker. [16] The application for costs in relation to the appeal and the costs application is dismissed. SENIOR DEPUTY PRESIDENT 1 [2011] FWA 1289 . 2 [2011] FWAFB 2625 . 3 Wodonga Rural City Council v Lewis , PR956243 , at para 6. 4 Deane v Paper Australia Pty Ltd , PR932454 , at paras 7 and 8. 5 A Smith v Barwon Region Water Authority , [2009] AIRCFB 769 , at para 48. Printed by authority of the Commonwealth Government Printer <Price code A, PR510862>