Industrial Relations Commission New South Wales Medium Neutral Citation: Favre v Commissioner of Police (No 2) [2024] NSWIRComm 1022 Hearing dates: 28 November 2023 Date of orders: 28 November 2023 Decision date: 15 April 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: The application for costs under s 181 of the Industrial Relations Act 1996 is dismissed. Catchwords: COSTS – respondent applied for order for costs –application for reinstatement under s 181D of the Police Act 1990 not instituted without reasonable cause and was not frivolous nor vexatious – applicant did not unreasonably fail to agree to a settlement of the claim – the application for costs order refused. Legislation Cited: Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Cases Cited: Attorney General v Wentworth (1988) 14 NSWLR 481 Bankstown City Council v Paris (1999) 93 IR 209 Colefax v Secretary, Department of Education (No 4) [2019] NSWIRComm 1017 Favre v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1088 Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; 13 VR 435 Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 Phillips v Industrial Relations Commission (NSW) (2006) 154 IR 96 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services (No 9) [2014] NSWIRComm 31 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services (No 9) [2014] NSWIRComm 31 Southcombe v Commissioner of Police, NSW Police Force [2023] NSWIRComm 112 Welch v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1002 Texts Cited: NIL Category: Costs Parties: Luke Daniel Favre (applicant/cost respondent) Commissioner of Police, NSW Police Force (respondent/cost applicant) Representation: Counsel: M Watts (respondent/cost applicant) Solicitors: K F Lawyers (applicant/cost respondent) Kingston Reid (respondent/cost applicant) File Number(s): 2022/00119527 Publication restriction: NIL decision 1. I have before me an application filed by the respondent in these proceedings which sought the following orders: 1. Pursuant to r36.16(3A) of the Uniform Civil Procedure Rules 2005 NSW (The "UCPR"), the Commission set aside its order of 18 August 2023 dismissing the proceeding; 2. Pursuant to s 181 of the Industrial Relations Act 1996 (NSW) (the "IR Act"), the Applicant in the substantive proceeding, pay the costs of the Respondent of and incidental to the proceeding; 3. Further, or in the alternative, pursuant to r 33.11 of the UCPR, the applicant pay the loss and expense incurred by the respondent of and incidental to compliance with the summons issued at the applicant's request on 5 December 2022 (the "Summons"); 4. The amount awarded be as follows: 1. Costs of and incidental to the proceeding is fixed in the lump sum amount of $15,000.00; and 2. Loss and expense incurred by the respondent of and incidental to compliance with the Summons fixed in the sum amount $2,250.00; 1. Upon the making of the above orders, the proceeding is dismissed. 1. This application follows the decision by the Commission as currently constituted on 18 August 2023 in Favre v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1088 (the "Decision"). 2. The Decision dismissed an application made by the applicant under s 181E of the Police Act 1990 (NSW) (the "Application"), which sought to set aside an order made under s 181D of the Police Act 1990 removing the applicant from the New South Wales Police Force (the "Force") for failing to comply with the respondent's COVID-19 vaccination directions (the "Direction"). 3. At the commencement of the hearing, the respondent stated that they did not press orders one and five and later in their oral submissions reliance on order three was effectively dropped. The effect was that the respondent sought a lump sum amount of $17,250.00 pursuant to s 181 of the IR Act (the "Order"). Relevant Factual Background 1. At the hearing of the Motion, the respondent relied upon an affidavit of Mr Luke David Maroney affirmed on 1 September 2023 and the applicant relied upon an affidavit affirmed by himself on 31 October 2023. Neither party sought to cross examine the opposing party's witnesses and the affidavits were read without objection. 2. The Application was filed on 20 April 2022 and was the subject of conciliation on 5 May 2022, during which the respondent made an oral offer of resignation which was rejected at the conciliation. The applicant stated that the basis for the rejection was that the applicant was seeking reinstatement to his former role as a Leading Senior Constable in the Force. 3. On 13 June 2022 the applicant made an informal request for the provision of documents, the respondent did not reply to this request. 4. At the conclusion of the conciliation, directions for the filing and serving of materials were made. These directions were varied on 16 August 2022 with the parties filing and serving their materials as follows: 1. On 15 September 2022 the applicant's evidence in chief; 2. On 20 October 2022 the respondent's evidence and outline of submissions; and 3. On 4 November 2022 the applicant's reply evidence. 1. On 8 November 2022, the applicant made another informal request for the provision of documents, which the respondent did not reply to. 2. On 5 December 2022 a Summons for Production was issued to the respondent at the request of the applicant seeking production of 28 categories of materials (the "Summons"). 3. On 9 December 2022, the respondent's solicitors sent two letters to the applicant's solicitors as follows: 1. The first being an open letter which detailed an opposition to the production of all materials in the Summons and stated that if the applicant pressed the Summons the respondent would seek an order that the applicant pay the respondent $44,628.10 for the costs of complying with the Summons; and 2. The second being a without prejudice letter containing an offer that the applicant could resign and the Order would be withdrawn (the "First Offer"). This letter of offer referred to the decision of this Commission in Southcombe v Commissioner of Police, NSW Police Force [2023] NSWIRComm 112 ("Southcombe"). 1. The First Offer was held open for acceptance until 20 December 2022 and was stated to be subject to the execution of a deed of release which was not provided. 2. The applicant filed and served a summary of case on 15 December 2022. 3. On 19 December 2022, the applicant wrote to the respondent requesting a copy of the deed of release referred to in the First Offer. 4. The respondent repeated the First Offer and annexed a draft deed of release and stated that the offer was to be held open for acceptance until 10 January 2023 (the "Second Offer") in correspondence dated 21 December 2022. 5. On 31 January 2023, the respondent repeated the terms of the First and Second offer which was held open for acceptance until 6 February 2023 (the "Third Offer") and drew the applicant's attention to the decision of this Commission in Welch v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1002 ("Welch"). 6. Each of the offers required the applicant to bear his own costs and provide an undertaking that he would not seek to apply nor be reappointed to any position within the Force, be that as a sworn officer, employee or contractor. 7. The applicant did not accept any of the offers within the stipulated time frame. 8. On 6 February 2023, the respondent filed a notice of motion seeking to set aside the Summons. 9. The notice of motion was heard by the Registrar on 9 March 2023 and on 10 March 2023 the Registrar made orders setting aside 10 out of 28 categories of documents of the Summons. 10. Various materials were produced by the respondent in relation to the Summons, with some documents being subject to a claim for privilege. On 12 May 2023, the Registrar made orders providing general access to 6 categories and no access to 3 categories. 11. On 22 May 2023, the respondent sent correspondence to the applicant which firstly denied an alleged non-compliance with the Summons raised by the applicant in a letter of 19 May 2023. Secondly, the respondent invited the applicant to withdraw his application and referred him to 5 recent cases in this Commission relating to the Direction, in which the applicant was unsuccessful and the Direction was held to be reasonable. 12. In correspondence dated 4 July 20023, the applicant again raised concerns that the respondent had not produced all materials under the Summons which were not set aside by the Registrar and sought production of same. 13. The respondent did not respond to the applicant's 4 July 2023 letter until 18 July 2023, in which they rejected the assertion of non-production under the Summons. Additionally, the respondent also pointed to 10 decisions of the Commission which dealt with the Direction and again put the applicant on notice the respondent would be seeking costs under s 181 of the IR Act. 14. In correspondence of 7 August 2023, the applicant alleged that the respondent had still not fully complied with producing all documents under the Summons, with the respondent refuting this in a letter the following day. 15. The matter came on for hearing on 16 and 17 August 2023. 16. The respondent's total legal costs in the proceedings, up to and including 31 August 2023, is $113,725.47. Respondent/Cost Applicant Case 1. The respondent relied upon ss 181(2)(a) and (c) of the IR Act in support of prayer 2 and 4, and in oral submissions. The relevant provisions are in the following terms: (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or ... 1. By reference to the Full Bench decision in Bankstown City Council v Paris (1999) 93 IR 209 at 219 ("Bankstown"), the respondent made the following submission as to the approach to be taken by the Commission in relation to the Application: 4.1 In respect of costs under s 181 of the IR Act, the Commission is required to take a two stage approach. The first stage is to determine whether one of the 'gateway' provisions ins 181(2) of the JR Act is met, and the second involves the exercise of the Commission's discretion in respect of whether costs should be awarded. 4.2 The Commission can be satisfied that the requirement contained in s 181(2)(c) of the IR Act has been met. That 'gateway' can be met in circumstances where: (a) 'there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party'; or (b) 'the course of conduct of [a] party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable.' 1. The respondents firstly submitted, that the necessary gateway for the Commission to exercise the discretion under s 181 was opened both in the applicant's failure to agree with a reasonable offer and the applicant's conduct was inconsistent with an intention to settle the case on any reasonable basis. 2. In oral submissions, the applicant also added that the bringing of the claim was frivolous and vexatious. 3. Dealing firstly with the Offers, the respondent contended that they were reasonable given the decisions in Southcombe and Welch which determined that the Direction was both lawful and reasonable. It was further advanced in oral submissions that acceptance of any of the Offers would assuage the applicant's expressed and submitted concern of clearing his name and the finding that his conduct constituted a criminal offence. 4. As to the second gateway, the respondent put that evidence of the applicant's intention of not being willing on settling on a reasonable basis is evidenced by the following conduct: 1. On 19 December 2022, the Costs Respondent sought provision of a deed of release giving effect to the Offer and an extension of time in which to consider the Offer, but upon being provided with a draft deed of release and extension of time in respect of the Offer, providing no response; 2. The Costs Respondent failed to respond to the 31 January 2023 letter reinstating the Offer following the Welch Decision; 3. Notwithstanding repeated correspondence regarding decisions dealing with the Vaccine Requirement, continuing to prosecute the Review Application, including pursuing the Summons and making additional requests for documents; and 4. Between 31 January 2023 and the Decision being issued, the Costs Respondent made no offers to resolve the matter on any basis. 1. As to frivolous and vexatious, the respondent made the following submissions: So to effectively just summarise and wrap things up, what we say is that having regard to the manifest weakness of the arguments that Mr Favre put, even at the time when he filed his application, having regard to the Fair Work Commission decisions that were available at that time, having regard to the fact that his submissions were contrary to his own evidence, all of these factors pointed to, or we say, point to the application being frivolous and/or vexatious. We say that in particular the vexation can be established by the huge summons that was subsequently issued and the weak arguments that the applicant put at the substantive hearing which suggest an intention to annoy or embarrass the Commissioner of Police to use the language in Wentworth. Or otherwise were brought for a collateral purpose or oppressive and were obviously untenable or manifestly groundless. 1. Having submitted that the gateway was opened, the respondent pointed to the following matters as to why the Commission should exercise its' discretion to make the orders: 1. the Costs Applicant offered to resolve the Review Application on a reasonable basis, on multiple occasions; 2. the Costs Applicant put the Costs Respondent on notice of the authorities that stood against the arguments he intended to pursue in the Review Application; 3. the Costs Applicant was put to significant expense in defending the Review Application due to the various requests for documents (by way of the Summons and otherwise) which were ultimately not relied upon at hearing of the Review Application; 4. extensive correspondence flowed between the parties which led to greater costs being incurred by the Costs Applicant than ought to have been necessary in proceedings of this nature; 5. the Costs Applicant only seeks a small proportion of her overall costs be paid by the Costs Respondent, being a sum of $15,000, as against total legal costs incurred in the sum of $113,725.47 (or around 13% of the Costs Applicant's total legal costs); and 6. the Costs Applicant has approached the Review Application reasonably in all of the circumstances. Applicant/Cost Respondent Case 1. The applicant rejected the respondent's submission that he had unreasonably rejected an offer to settle his claim or that his conduct was inconsistent with an intention to settle the proceedings. In support of this contention the applicant made a submission to the effect that the following facts were supportive of this conclusion: 3.6.1 The Costs Applicant persistently alleged that the Costs Respondent's breach of the Direction was a criminal offence in order to justify his removal pursuant to section 181D of the Police Act 1990. 3.6.2 The Costs Respondent commenced proceedings under section 181E of the Police Act 1990, as he was entitled to do so. Amongst other relief, he sought reinstatement to his former position within the NSWPF. 3.6.3 On 5 May 2022, the parties attended Conciliation. The Costs Applicant made clear she was not open to further discussions. She said she would not accept anything but resignation of the Costs Respondent. The Costs Respondent did not accept this as a resolution. 3.6.4 In June 2022 and November 2022, the Costs Respondent requested documents from the Costs Applicant for his case. She refused to reply or produce these documents. 3.6.5 On 5 December 2022, the Costs Respondent issued a Summons to Produce to the Costs Applicant. 3.6.6 On 9 December 2022, the Costs Applicant sent two letters to the Costs Respondent: 3.6.6.1 The first letter demanded payment of over $44,000 in conduct money for compliance with the Summons; and 3.6.6.2 The second letter repeated an offer of settlement such that the 181D Order would be withdrawn on the condition that the Costs Applicant provide his letter of resignation. This was notwithstanding the Costs Respondent having reject this offer previously. 3.6.7 The offer made in writing to the Costs Respondent was in the context of the Costs Applicant refusing to comply with an Order of this Commission to produce documents pursuant to the Summons, and demanding payment of $44,000 from an unemployed former serving police officer. 3.6.8 There was ongoing non-compliance with production under the Summons and subsequent Orders made on 10 March 2023 by the Costs Applicant, which frustrated the progress of the Proceeding and frustrated any potential for conciliatory discussions between the parties. 3.6.9 The Costs Applicant did not adequately pursue settlement discussions with the Costs Respondent. Rather, the Costs Applicant frustrated the process by failing to comply with Orders of this Commission and hindering the Applicant's ability to present his case. 3.6.10 While the offer was repeated on 21 December 2022, this was simply to complete the presentation of a fulsome offer as put in writing on 9 December 2022, i.e. by including the proposed Deed. 3.6.11 While the offer was repeated on 31 January 2023, the Costs Applicant by this point had not produced documents responsive to the Summons. 1. The applicant also submitted that the other decisions of this Commission and the Fair Work Commission, including Welch, did not determine all the matters advanced by the applicant in the hearing of his application. 2. As to frivolous and vexatious, firstly the applicant submitted that it was not frivolous as it there was a cause of action and that his Application was with substance, was not fanciful and otherwise groundless. 3. As to vexatious, the applicant made the following submission: ….it cannot be found that he had the intention of annoying or embarrassing the Costs Applicant. At all material times, the Costs Respondent sought to be reinstated as a police officer, and this was not untenable to maintain in the Proceeding, especially in circumstances where the Direction was eventually revoked on 1 June 202. 1. In relation to the exercise of discretion, the applicant submitted that the respondent did not comply with the rules of the Commission, including the filing of filing materials without leave and failing to produce materials required under the Summons. Consideration 1. As identified by the respondent, the approach to an application for costs under s181(2)(c) is as stated in Bankstown. That approach was stated by the full bench at 219 and it is appropriate to set that passage out in full: Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise. 1. In Phillips v Industrial Relations Commission (NSW) (2006) 154 IR 96 Mason P, with whom Spigelman CJ and Beazley JA agreed, stated that the proper test under s 181 (2)(c) required the Court to consider the response of the reasonable person. 2. Dealing firstly with whether the rejection of any of the Offers could be considered unreasonable, Boland J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services (No 9) [2014] NSWIRComm 31 ("Ganino") , Boland J adopted the Victorian Court of Appeal's summary of the principles and factors to be considered when assessing whether a rejection of an offer of settlement is unreasonable in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; 13 VR 435 at [23]- [25]: The test of unreasonable rejection [23] In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as "manifestly" or "plainly" unreasonable. [24] Of course, deciding whether conduct is "reasonable" or "unreasonable" will always involve matters of judgment and impression. These are questions about which different judges might properly arrive at different conclusions. As Gleeson, C.J. said recently, "unreasonableness is a protean concept". But a test of reasonableness is, we think, entirely appropriate to the exercise of a discretion such as this. Factors relevant to assessing reasonableness [25] The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for an indemnity costs order in the event of the offeree's rejecting it. (Footnotes omitted.) 1. Turning to the second gateway, being whether the applicant engaged in conduct which was inconsistent with an intention to settle; In Colefax v Secretary, Department of Education (No 4) [2019] NSWIRComm 1017 [11] that the obligation imposed on parties is "to undertake a responsible and careful assessment of the prospects of the litigation". 2. For the following reasons, I am not satisfied that either of the two gateways identified in Bankstown has been satisfied: 1. The Offers were made at a stage of the proceedings at which point the Summons had not been complied with. This is not in `small part due to the actions of the Respondent in taking three months to put on the motion to set aside the Summons and seeking an extraordinary amount for conduct monies. 2. It is also evident that the applicant was of the opinion that the respondent had not complied with the Summons by the time that the hearing commenced. 3. Although there were a number of decisions concerning the Order and COVID vaccination policies in general, at the time the Third Offer expired there was not any binding authority with respect to the Order, nor had there had been at the time of the Decision. 4. Regarding the level of the respondent's compromise, it is difficult to see how there was any meaningful compromise by the respondent when the outcome of acceptance would have resulted in the applicant never returning to any role within the Force after a thirteen plus year career without any compensation. 1. In relation to frivolous in Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 the Full Bench stated that proceedings would be regarded as "frivolous" if "on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter". There was no evidence presented to the Commission that the proceedings were a paltry or trifling matter such as to meet the jurisdictional gateway of "frivolous". 2. As to vexatious, Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 per at 491 identified the following definition: It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless. 1. The respondent has not made a case out that the application was frivolous or vexatious. 2. Firstly, I do not accept the respondent's submission that that at the time the Application was filed that it was clear on its' face that it would not succeed. At the time the Application was filed, there had not been any first instance decision, let alone any decision or judgement at any level concerning the direction. 3. Similarly, it cannot be said that the Application seeking reinstatement to the Force following the Order is a paltry or trifling matter. 4. Finally, there is no basis upon which I could I find that the Application was brought for a collateral purpose, the allegation that the Summons was an example of this can not stand. Albeit parts of the Summons were dismissed by the Registrar, many others were not. 5. For the above reasons, the application for costs under s 181 of the Industrial Relations Act 1996 is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024