Industrial Relations Commission New South Wales Medium Neutral Citation: Jaggi v City of Parramatta Council (No 3) [2024] NSWIRComm 1043 Hearing dates: Determined on the papers. Date of orders: 24 July 2024 Decision date: 24 July 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The applications for costs are refused. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Costs — Whether proceedings instituted without reasonable cause Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996, s 181 Cases Cited: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 Cross v Secretary of the Department of Education (No 2) [2022] NSWIRComm 1115 Dr A v Health District (No 4) [2014] NSWIRComm 56 Jaggi v City of Parramatta Council [2023] NSWIRComm 1112 Kanan v Australian Postal & Telecommunications Union [1992] FCA 366 Margaritte Joanne Colefax v Secretary, Department of Education (No 4) [2019] NSWIRComm 1017 Moore v North Sydney Council [2019] NSWIRComm 1021 Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 Storey v Commissioner of Police [2019] NSWIRComm 1050 Secretary of the Department of Planning Industry, and Environment v Blacktown City Council [2021] NSWCA 145 Storey v Commissioner of Police [2019] NSWIRComm1050 Category: Costs Parties: Vikram Jaggi (Appellant) City of Parramatta Council (Respondent) Representation: Counsel: Mr D Nagle (Respondent) Industrial Organisation: Local Government NSW (Respondent) File Number(s): 2023/00320804 and 2023/00345303 Publication restriction: Nil decision 1. Before the Commission for determination is a Notice of Motion (the Motion) seeking orders for costs in respect of appeals against two decisions of the Industrial Registrar. 2. The decisions of the Industrial Registrar were delegated decisions made in the course of an underlying proceeding by Vikram Jaggi against City of Parramatta Council (the Council). The underlying proceeding was a claim by Mr Jaggi that the Council had breached s 210 of the Industrial Relations Act 1996 (IR Act). 3. The appeals were heard together, and determined, on 15 November 2023. Each appeal was dismissed, and the decision was published as Jaggi v City of Parramatta Council [2023] NSWIRComm 1112. 4. Shortly after the appeals were dismissed, the respondent filed the Motion seeking an order for costs in respect of each appeal. 5. Because the appellant, the applicant in the underlying proceedings, was self represented, the Commission determined to stay determination of the Motion until after the conclusion of the underlying proceedings. This was possible because the underlying proceeding and the Motion were independent of each other, such that the outcome of one would not have a bearing on the outcome of the other. 6. The Commission determined that it was more important to resolve the underlying proceeding and so proceeded to determine that first. 7. Where identified by their role, these reasons will refer to the parties as the appellant and the respondent, as they were in each appeal. The Motion 1. The Motion set out the orders sought from the Commission as to costs in the following terms: "a. That the Appellant initiated appeal proceedings in Matters 2023/00345303 and 2023/00320804 vexatiously, frivolously and without reasonable cause; b. That costs be awarded to the Respondent pursuant to section s181(1)(a)-(b) of the Industrial Relations Act 1996 (NSW) as agreed or assessed; …" 1. Supporting the Motion was an affidavit of Mahrous Nassif, of Local Government NSW on behalf of the respondent, which set out: 1. The course of the underlying proceedings; 2. The background to the decisions of the Industrial Registrar, and the appeals therefrom; and 3. A letter from Mr Nassif to the appellant which set out the respondent's position that each of the proceedings instituted by Mr Jaggi was vexatious. 1. The letter from Mr Nassif to Mr Jaggi also referred to settlement offers in the underlying proceeds, made on a "without prejudice except as to costs" basis. This aspect of the letter is not part of the case of the respondent on the Motion. Management of the application for costs 1. On 18 January 2024, the Commission made orders for the filing of submissions and evidence, including setting dates for the parties' submissions and an order that any written submissions not exceed 10 pages. 2. The parties initially agreed that the matter could be determined on the papers. 3. The respondent filed submissions on time and within the limits set. Those submissions annexed the transcript of the appeal proceedings. No additional evidence was filed by the respondent. 4. The appellant filed his submissions and evidence a day late and, with leave of the registrar, filed 14 pages of submissions. He also filed a witness statement of some 15 paragraphs, only four of which set out matters which were not already a matter of record in the proceeding. 5. The respondent filed material in response on the day originally set for the filing of any material in reply to the appellant's documents. These also otherwise conformed with the directions set by the Commission. 6. Between filing his submissions, and being served with the respondent's reply, Mr Jaggi sought to issue summonses directed to the respondent, the industrial association representing the respondent, and counsel appearing for the respondent. 7. As Mr Jaggi was not represented by a solicitor in the proceeding, he required leave to issue the summonses. The Industrial Registrar determined that she would refer the question of issuing the summonses to the Commission. 8. It was apparent on the face of the draft summonses filed by Mr Jaggi that there were a range of issues which would be complex to resolve, including that a number of the documents sought would be subject to a claim for client legal privilege. 9. When the matter was mentioned on 15 March 2024, the Commission sought to clarify the categories of costs which the respondent pressed the Commission to order against Mr Jaggi. This process was adopted in order to reduce the dispute between the parties, and to avoid the need for the summonses. 10. In the event, the Commission required the respondent to articulate the quantum of costs, the basis on which the respondent, as opposed to its representative, was responsible for paying those expenses, and gave the appellant an opportunity to make submissions in reply. On this basis, it was agreed that the appellant's Notice of Motion was redundant. 11. The appellant withdrew his Notice of Motion. 12. At the Mention, Mr Jaggi pressed for oral submissions after the filing of all remaining documents. The Commission remained unpersuaded that oral arguments would add substantially to the already extensive written submissions, observing that all that was likely to be achieved was the parties expending further time, and out of pocket expenses, attending the Commission to restate what was in their written submissions. 13. Mr Jaggi was given leave to include in his further written submissions any further basis on which he sought that there be oral submissions. At the Mention of this matter on 15 March 2024, the most that the appellant could articulate as to the need for oral submissions was the interaction which he had previously experienced between the Commission and the parties during oral submissions. 14. The parties complied with the timetable set for the further documents. 15. For reasons set out below the Commission has determined that it would not be appropriate to make costs orders. In the circumstances there is nothing that would be gained by Mr Jaggi in making oral submissions. 16. Given that the respondent did not seek to make oral submissions, and in the Commission's view have properly and adequately set out any case that could have been made for costs, allowing oral submissions would simply have added to the respondent's costs in the proceedings. Costs in proceedings before the Commission The legislation 1. The Industrial Relations Act 1996 (the IR Act) provides the following as to awards of costs by the Commission: 181 Costs (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 the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission, when it is not in Court Session, 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 (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or … (4) In this section, costs includes— (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. Submissions of the parties as to application of the legalisation 1. The respondent submitted that, in determining an application for costs, the Commission was engaged in a two-step process, as described by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85, at [28]: "[28] … The first stage requires a determination as to whether s 181(2) of the Act is enlivened. The second stage of the process requires the Commission to exercise its discretion whether to award costs under s 181(1) of the Act." 1. This is consistent with other decisions of the Commission. Some decisions have described the first step as a gateway to consideration of the merits of an award of costs. 2. The appellant did not address this submission. 3. It is important to observe that although a single decision was published there were two separate appeals and each appeal must be addressed separately on its independent merits. 4. Accordingly, the first question which the Commission is required to answer is whether any of the circumstances identified in s 181(2) exist in relation to either, or both of, the appeals. 5. The respondent's submissions then turned to the meaning of "instituting proceedings", and to the meaning of "without reasonable cause". 6. As to the first of these, the respondent relied on the reasoning of the Full Bench in Dr A v Health District (No 4) [2014] NSWIRComm 56 at [26]-[29]. The substance of that reasoning is that while it is impossible to produce a definition of the phrase "institute proceedings" it is not the form which is important to consider. Relevantly, while the taking of an interlocutory step in a larger proceeding will often not be the institution of proceedings, it may be the institution of proceedings when that interlocutory step seeks to alter the status of a previously determined issue. 7. In the case of Dr A, a notice of motion seeking to vary an existing nondisclosure order was concluded by Boland AJ to be a step which constituted the institution of proceedings. By analogy, the respondent's submission was that the appeal against decisions of the Industrial Registrar in relation to the issuance or otherwise of summonses constituted the institution of proceedings. 8. The appellant did not address this submission. 9. The Commission accepts the logic of the respondent's submission and proceeds on the basis that each appeal amounted, separately, to the institution of proceedings. 10. The respondent also took the Commission to the decision of the Full Bench in Dr A as to what would constitute "without reasonable cause", and in particular to paragraphs [14]-[15] where Boland AJ set out the following: "14. In Re Operational Ambulance Officers, the Full Bench, at [31]-[32], also referred with approval to what Wilcox J said in Kanan v Australian Postal & Telecommunications Union [1992] FCA 366; (1992) 43 IR 257 at 264-265 in respect of the phrase 'without reasonable cause': [29] It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause'. But where it appears that, on the applicant's own version of the facts, it is clear that the proceedings must fail, it may properly be said that the proceedings lacks a reasonable cause. 15. The mere fact that an applicant was unsuccessful in its application does not, of itself, make the application frivolous or vexatious or one that is pursued without reasonable cause. Additionally, it is to be noted that s 181(2)(b) requires that in considering the applicability of the phrase 'without reasonable cause", as Wilcox J pointed out in Kanan, it is to be done 'upon the facts apparent to the applicant at the time of instituting the proceedings.'" 1. The respondent summarised its position as: "6. Simply put, the task before the Commission is to objectively assess, on the facts apparent to the Applicant at the time that he instituted each appeal proceedings, whether there was any substantial prospect of success in either of the appeal proceedings. [Respondent's submission in reply.] 1. For reasons set out in detail below at [71] – [74], the Commission has concluded that the phrase "substantial prospects" is apt to suggest too high a standard. To the extent that substantial is taken to refer to realistic prospects, as opposed to unrealistic ones, the Commission can accept the respondent's summary submission. To the extent that substantial means a quantitatively strong case the Commission concludes that would be too high a standard. 2. Before proceeding to the submissions of the appellant it is necessary to resolve some internal tensions within the submissions of the respondent. 3. As is already set out above at [8], in moving the Motion the respondent set out that it sought an order that "the appellant initiated appeal proceedings … vexatiously, frivolously and without reasonable cause …". 4. In the opening to its initial submissions, the respondent set out: "2. The Respondent submits that that the appeal proceedings were instituted without reasonable cause, thereby satisfying the requirements of s 181(2)(a) and (b) and enabling the Commission to make an order for costs under s 181(1)." 1. Thereafter the respondent's submissions only set out why the appeals were instituted without reasonable cause. The words "frivolous" or "vexatious" only then appear in the respondent's submissions to the extent they are set out in the reasoning of Boland AJ from the Full Bench decision in Dr A. 2. From the consideration of Boland AJ at [10]-[12] in Dr A, it is clear that those parts of the accepted meanings of "frivolous" and "vexatious" which would have been relevant to the respondent's case had a substantial overlap with the respondent's submissions that the appeals were initiated without reasonable cause. This is clear also from the decisions of Constant C in Moore v North Sydney Council [2019] NSWIRComm 1021 and in Storey v Commissioner of Police [2019] NSWIRComm 1050. 3. To the extent that there is a difference, it is also clear from the previous decisions that "without reasonable cause" is the lower standard, so if the respondent's case could not succeed on this basis, it is hard to see that it would have succeeded on the other bases. 4. It is clear therefore that the respondent's case is fully developed on the basis set out in its submissions. The Commission is grateful that the respondent chose not to duplicate essentially the same submissions under different nomenclature. 5. In the circumstances, the Commission considers that the only question which must be considered at the "first stage" is whether the appeals, or perhaps one of them, was instituted without reasonable cause. 6. Mr Jaggi's initial submissions did not challenge the respondent's submissions as to the law, and made only one substantial point not made by the respondent. 7. That submission was that so long as a single point of each appeal fails the "without reasonable cause" step, costs cannot be considered: "2. Commissioner Sloan has, however, helpfully summarised the essence of these authorities in Cross v Secretary of the Department of Education (No 2) [2022] NSWIRComm 1115 (Cross) at [34] in which he said that in the event multiple grounds are argued in any proceedings and even if only one of those grounds is considered at least arguable, it won't meet the tests in section 181(2)(a)-(c). That is, to pass the gateways in s 181(2)(a)-(c), it would seem to be necessary that the application or proceedings, as the case may be, must be capable of being impugned in their entirety. If a ground is advanced that is at least arguable and which would, if accepted, allow the Commission to grant the relief sought, I do not see how 'the application' could be frivolous or vexatious or how the 'proceedings' could be said to have been instituted without reasonable cause. 3. Similar approach was adopted by Chief Commissioner Constant in Storey v Commissioner of Police [2019] NSWIRComm1050 at [66] where she declined to exercise the discretion to award costs where the summons was found to be frivolous only in respect of some of the grounds/categories." [Emphasis in original.] 1. In its submissions in reply, the respondent did not take issue with this submission by Mr Jaggi, which is not controversial given previous decisions of the Commission. The submission of the parties as to the merits 1. The respondent's initial submissions as to merits can be sufficiently summarised by the following extracts: "8. Whilst both appeal proceedings were appeals in the strict sense, the Applicant's general approach to both appeals was to allege as many grounds of appeal as possible in an attempt to re-raise his substantive arguments through any means. … 12. The Applicant's appeal application and Outline of Submissions raised three matters alleged to be errors of law. These matters are summarised at paragraph [31] of Jaggi v City of Parramatta Council [2023] NSWIRComm 1112 (hereafter referred to as the "Decision") as follows: 1. he had been denied procedural fairness; 2. the wrong test had been applied; and 3. inadequate reasons had been provided by the Industrial Registrar. 13. In his oral submissions, the Applicant conceded that his submissions regarding procedural fairness only related to the asserted inadequacy of the reasons provided by the Industrial Registrar. The Applicant moved away from the grounds of appeal set out in his application and stated: I think when I said procedural unfairness was there, it's because I just could not understand that decision and it just put me in a situation where one thing that I could not understand even if I had to appeal it, I had no basis to go for it because there was, as I said, there was nothing for me to consider; not consider but understand. … 15. As to the claim that the incorrect test had been used by the Industrial Registrar, at the time of instituting appeal proceedings the Applicant never asserted any basis on which this claim was made nor attempted to identify the correct test, if not the rule arising from Secretary of the Department of Planning Industry, and Environment v Blacktown City Council [2021] NSWCA 145 as applied by the Industrial Registrar and confirmed as correct at paragraph [37] of the Decision. … 17. Following the approach of the Full Bench of the Commission in Margaritte Joanne Colefax v Secretary, Department of Education (No 4) [2019] NSWIRComm 1017 (at paragraph [55]), the question before the Commission 'is not how genuinely the appellant believed in the merits of [his] appeal, but whether objectively there were one or more arguable points of law on which [he] could rely on the appeal.' … 21. From page 7 line 20 to page 9 line 26, the Transcript records the Applicant's attempt to reargue the relevance of internal correspondence involving eight identified individuals, only one of whom was the relevant decision maker. 22. From page 10 line 40 to page 11 line 47, the Transcript records the Applicant's attempt to reargue the relevance of the reference checks for other applicants to the position to which he was not appointed. 23. Despite the Applicant's insistence that the Commission reconsider these issues, they were not matters that objectively provided the Applicant with any hope of success in his appeal. 24. The Registrar's approach was orthodox and clearly adhered to the objects of the Industrial Relations Act 1996 (NSW) and the overriding purpose of the Civil Procedure Act 2005 (NSW), in that she acted in a manner which provided a framework for the conduct of industrial relations that is fair and just and facilitated the just, quick and cheap resolution of the real issues in the matter. … 26. The Applicant's second appeal application sought to appeal from the Industrial Registrar's decision of 25 October 2023. 27. In the second appeal the Applicant maintained his strategy of raising as many grounds of appeal as possible in order that he receive an opportunity to reargue the matters raised before the Registrar. The application set out the following (summarised) reasons as the basis for the appeal: A. failing to provide any and any proper/adequate reasons for her orders, B. failing to accord procedural fairness and natural justice by not providing any indication of fact finding and what evidence was considered or how the competing submissions of the parties were reconciled; C. failing to expose the path of reasoning; D. failing to accord procedural fairness to the Applicant by discouraging him to convince her that there was no legitimate forensic purpose and the respondent embarked on a fishing expedition; E. ordering the applicant to produce bank statements without redaction of expenditure (debit) items; F. ordering the Applicant to produce credit card statements which, as a matter of common knowledge, are meant to contain information of expenditure (debit) only; G. ordering the applicant to produce all the financial information for any business he might be running; H. ordering the applicant to produce personal bank account statements and personal credit card statements/transactions; I. issuing a summons on Burwood Council, although the Respondent had failed to establish the existence of any employment relationship between the Applicant and the Burwood Council; J. issuing a summons on Burwood Council constitutes an abuse of process; and K. The Registrar made a jurisdictional error by enquiring from the applicant to answer if he is employed at the Burwood Council on the Respondent's prompting. 28. Grounds A-C allege that the Registrar failed to provide any or adequate reasons for her decision, and failed to accord procedural fairness to the Applicant by failing to do so. In the Decision, Muir C stated at [70]: When combined with the interactive hearing conducted by the Industrial Registrar, as evidenced by the transcript, I find the Industrial Registrar provided proper and adequate reasons. … There is no apparent or obvious error in the order, logic or exposed reasoning of the Industrial Registrar. The orders are orthodox in matters before the Commission and especially so in the case where the appellant, the applicant in the substantial proceeding, has made submissions that tend to suggest he is not an employee of Burwood Council and is not a contractor but has gone to considerable lengths to avoid stating one way or the other his position on each point. … 31. Ground D alleges a basis of procedural fairness that is factually incorrect and was not otherwise pursued by the Applicant. 32. The errors alleged by the Applicant at grounds E-I were not errors of law and were a blatant attempt at re-litigating the matters already determined by the Registrar. Objectively, these grounds did not provide any arguable basis through which the Applicant could have achieved success in the appeal proceedings. 33. The questioning of the Registrar impugned by ground K cannot be characterised as a jurisdictional error and was in fact an ordinary line of questioning which the Registrar was permitted to pursue. The assertion that the Registrar erred by making enquiries of him is plainly incorrect and was later abandoned by the Applicant." [Emphasis in original.] 1. The respondent then set out its submissions as to the exercise of the Commission's discretion to award costs, being step 2 in the process. 2. The substance of these submissions was that the manner in which Mr Jaggi had conducted the appeals, and the underlying proceeding, was "excessively litigious" and "deliberately obstructive of a just and efficient resolution of proceedings". 3. The respondent pointed to the appellant having raised and abandoned a number of different grounds of appeal across the two appeals and to the Commission's findings that a large part of the appellant's submissions were really an attempt to relitigate the substance of matters determined by the Industrial Registrar, rather than being directed to establishing error in the Industrial Registrar's original decisions. 4. The respondent also pointed to the appellant having refused to answer straightforward questions of the Industrial Registrar; questions which would have clarified the ambit of issues and thus simplified the process of determining whether the documents sought under summons were indeed relevant to the proceedings. As the respondent submitted: "42. … [The] Applicant maintained the contradictory positions at that the Respondent could not seek to summons Burwood Council because it had not proved an employment relationship and that the summons was also an abuse of process because it could damage his employment relationship with Burwood Council." [Respondent's initial submissions.] 1. Mr Jaggi's initial submissions are sufficiently captured by the following portion of those submissions: "7. The Applicant's main case in both appeals was that the Registrar erred at law in failing to provide any or any adequate reasons in her decisions. … 9. His main case had an added extremely important argument that the comments in the transcript are no substitute for the reasons in the Registrar's decisions (Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [41]). In other words, he argued that the Registrar was duty bound to provide the reasons on the face of her decisions in a clear and obvious manner. The Applicant will argue in the submissions to follow that the Registrar's failure to not provide the reasons on the face of her decisions was a reasonable cause for him to appeal against her decisions. 10. Of note, Commissioner Muir's did not make a finding that Registrar provided reasons in an obvious and clear manner on the face of her decision. Instead, Commissioner Muir found, i. that the adequate reasoning was exposed in Registrar's decisions when considered in the context of multiple factors as below: 39 In the context of: the delegation from the Commission to the Industrial Registrar; the interlocutory nature of the Industrial Registrar's decision; the submissions of the parties; and the interactive nature of the hearing, as reflected in the transcript; the Commission considers that no error is to be found in the Industrial Registrar's decision in so far as inadequate reasoning is concerned. ii. that the logic and reasoning of the Industrial Registrar followed an orthodox approach and reached an orthodox outcome which may not be apparent to a self-represented litigant. In other words, Registrar failed to expose the reasoning in a manner that could easily be understood by a common person without possessing any legal qualifications and/or experience in Commission's routine procedures. (paragraph 40 and 41 of the Commissioner Muir's decision of 15 November 2023 (the Decision)) 11. In any event, out of the above four factors that Commissioner Muir considered at [39] of his decision to rule that adequate reasons were exposed by the Registrar, the Applicant argued strongly against two factors. First is related to the standard of reasons required in the Registrar's decisions considering the delegation from the Commission and second is related to the interactive nature of the hearing as reflected in the transcript. 39 In the context of: the delegation from the Commission to the Industrial Registrar; the interactive nature of the hearing, as reflected in the transcript; 12. The Applicant submits that his arguments on those two factors were valid arguable points of law and if those were arguments were accepted by the Commission, it would've allowed the Commission to uphold the appeals by recognising that the Registrar's decision were infected by an error of law. The Appeals therefore cannot be stigmatised as instituted without reasonable cause. … 33. Again, a party cannot be said to have commenced a proceeding 'without reasonable cause' simply because their argument proves unsuccessful. The focus of the section is on the institution of the proceedings, and the court should not allow itself to be influenced unduly by the actual result. 34. IN SUMMARY, after considering the above two aspects objectively, the Applicant believed that he had advanced strong arguable points of law with substantial prospects of success in his appeals in the event Commission decides that: I. the Registrar was bound by the judicial duty to provide reasons in her decision to the same standard as expected of a member of the Commission; and II those reasons should have been mentioned on the face of the decision and not to be distilled from the transcripts." [Reproduced verbatim.] 1. It would be fair to describe the rest of the appellant's extensive initial submissions as to whether there was a reasonable cause for him to have instituted each appeal as laboriously teasing out every possible permutation of arguments. 2. The appellant then set out his arguments as to the merit of two further grounds of his second appeal, being: 1. the relevancy of the provision of personal financial information; and 2. the categories of persons employed by the respondent whose emails referencing the appellant's potential employment should be provided to the appellant. 1. Contrary to the express findings of the Commission in the appeal proceedings proper, the appellant then set out reasons why his appeal had not in large part sought to rerun the case he had already run before the Industrial Registrar. 2. Following this, the appellant set out eight bases upon which the Commission ought not exercise the discretion to order costs, if the Commission found that jurisdiction to do so existed. These bases ranged from the reasonable and relevant to the unusual and the frankly wrongheaded. 3. In the first category fell reasonable summations of earlier decisions of the Commission to the effect that generally, costs did not follow the event in the Commission. Also in this category was a submission that the issues under appeal, and indeed the question of appeals from the Industrial Registrar as such, were not matters on which there were many decisions guiding the parties. 4. In the second category was a submission that because the respondent was legally represented, and had failed to "no case" the appeals, any costs borne by the respondent in engaging with and making submissions at the appeals should not be the subject of a costs order. 5. In the third category was a submission that the respondent had unreasonably spent money by responding to the Grounds of Appeal, in the appeal application, rather than responding to the appellant's written submissions. 6. The appellant then set out, across more than three pages, what he described as a response to the respondent's submissions. 7. The submissions began with a concession by the appellant that he could have been less difficult before the Industrial Registrar, by frankly answering a simple question as to the status of his employment with Burwood Council. 8. Unfortunately, from there the appellant again engaged in a laborious teasing out of available arguments. Little set out on these three pages made points different from those made by him earlier in his submissions. 9. In reply, the relevant portion of the respondent's submissions were: "11. At paragraph [47] of the submissions, the Applicant referred to the remarks of Boland AJ in Dr A, that 'the Commission's jurisdiction ... is essentially a non-costs jurisdiction'. Boland AJ's complete comments in Dr A at [8] are: The Commission's jurisdiction (as distinct from the Commission in Court Session) is essentially a non-costs jurisdiction. There are limited exceptions, which are prescribed in s 181(2) of the IR Act. If one or more of the tests required by s 181(2) are met in any particular case it then becomes a matter for the Commission's discretion whether to award costs: s 181(1)(b). 12. The Commission would be incorrect to regard the particular words cited by the Applicant as referring to any principle or rule affecting whether the Commission should exercise its discretion to award costs where one of the criteria in s 181(2) has been met. The full comments in Dr A establish that Boland AJ was merely identifying that the Commission ordinarily operates as a non-costs jurisdiction, except where one of the criteria in s 181(2) has been met. 13. At paragraph [48] of his submissions, the Applicant noted the remarks of Constant C … in Moore v North Sydney Council [2019] NSWIRComm 1021 at [29] that the Commission's power to award costs is 'a discretionary power which is rarely exercised'. 14. Constant C's complete comments in Moore are that the power to awards costs 'is a discretionary power which is rarely exercised in unfair dismissal cases'. The Motion concerns two appeals of interlocutory decisions made by the Industrial Registrar during proceedings regarding an application for relief from victimisation. The Commission would be incorrect to regard Constant C's observation in Moore as having any weight or relevance in the current matter." [Emphasis in original.] 1. In his submissions in reply to the respondent's reply, the appellant again took up every point which occurred to him, and developed those points at length. 2. The only point raised in these submissions which was materially different from his earlier submissions went to the Commission's discretion to award costs should the Commission reach stage 2. 3. It was the submission of the appellant that the respondent had misunderstood the case law by making a distinction between an "arguable point of law", and "substantial prospects of success". In effect the appellant submitted that these were two expressions of the same status. If a point of law was arguable, by definition it had substantial prospects of success. 4. The Commission does not accept that this is a proper statement of the law. Grammatically it is not correct that one follows from the other, and in any event the decisions cited by the appellant do not support his proposition. 5. As the decisions cited by the appellant demonstrate, an argument put by a party may be "so obviously untenable it cannot succeed". In such a case the party would not have an arguable point of law. Conversely a party may have an argument which is not so obviously untenable, and it is therefore arguable. Nowhere in the decisions cited by the appellant is there a definitional equivalence between an arguable point and one which has a substantial prospect of success. 6. At the risk of overanalysing the argument, it must be clear grammatically, and is tolerably clear from the decisions cited by the appellant, that an arguable point of law may have strong prospects, or indeed lower, perhaps described as reasonable prospects, or lower still, moderate prospects of success. Consideration 1. Given the decisions on the appeals, it must be obvious that the appellant did not have substantial prospects of success. However, it is not necessary for the appellant to have had such prospects to avoid having passed the gateway of stage 1. What is necessary is that, on the facts apparent to the appellant at the time instituted the appeals, there was an arguable case for him to make. 2. On the basis of what the appellant described as his main case, it was at least open to possibility that the appellant could have succeeded on both appeals. 3. Had the Commission on appeal determined that decisions of the Industrial Registrar, in those reasons as such, must contain the same standard of reasonings as decisions of the Commission, on the material apparent to the appellant at the time he instituted the first appeal he could have succeeded in his appeal. 4. In words adopted from Boland J in Dr A on the basis of the facts known to the appellant it was not impossible that his appeal would succeed if the decision as to the scope of reasoning required to be set out in the decision fell in favour of the appellant. 5. It must follow from the foregoing that at least the first appeal was not instituted without reasonable cause. 6. The second appeal is much more finely balanced. 7. The second decision appealed against set out at least the basic reasoning for the Industrial Registrar's decision. Some portions of the reasoning were absent from the Industrial Registrar's decision per se, albeit that the Commission determined the necessary logic had been exposed through the earlier interactions with the parties. 8. The Commission has concluded that it was possible for the appellant's argument to have succeeded, based on the material apparent to him at the time he instituted the appeal. 9. Had the appellant succeeded in persuading the Commission that the Industrial Registrar's decisions must set out strictly the same standard of reasoning as would be required of the Commission, the appellant would have succeeded in his appeal. It appears to the Commission that, however marginally, this means that Mr Jaggi has raised an argument, which needed to fall in his favour in order to succeed, but on which basis he was not bound to fail on the basis of events and facts put by him in his appeal. 10. On this basis at least one ground of the second appeal, and as the appellant puts it his main case, was not made without a reasonable basis. 11. In coming to this conclusion, the Commission has determined that the appellant's articulated grounds A, B and C all amount to a single basis of appeal. This is necessary to set out, as the remaining bases advanced by the appellant in the second appeal had no real prospect of success. 12. Each of the remaining grounds of appeal were simply untenable. Many of them were untenable because the appellant had intentionally obscured whether he was employed and by whom. Given this obfuscation, and the case by then articulated by the respondent, the objected categories of documents were unequivocally relevant. 13. Accordingly, on grounds E to K the appellant was never going to be able to demonstrate error by the Industrial Registrar. 14. Ground D was untenable, as it was clear that the Industrial Registrar set out her preliminary view on an issue, to ensure the appellant had an opportunity to understand the issue he needed to address to persuade her to his case. Far from failing to accord him procedural fairness, her conduct ensured such fairness. 15. Each decision as to costs therefore fails at stage 1. 16. Each of these outcomes is relatively finely balanced, particularly the second appeal. 17. If the Commission is wrong and the balance should have been determined in favour of the respondent, the Commission would have concluded separately and distinctly as to its discretion under stage 2 for each appeal. 18. Given the narrow grounds set out in the first appeal, focused tightly on the extent to which the Industrial Registrar had explicitly set out her reasons, and that objectively there was an absence of these in the decision as such, the Commission would not have exercised its discretion to order costs in relation to the first appeal. 19. Given the extensive range of grounds set out in the second appeal, and that many of them were clearly intended to simply lengthen the issues in dispute, that much of this appeal transparently sought to reargue his case, and that the appellant transparently caused unnecessary cost to the respondent by the way he conducted the second appeal, the Commission would have awarded Counsel's fees, and the cost of the transcript in relation to the second appeal. 20. The Commission would have set Counsel's fees at two thirds of the total fees charged, based on the difference in preparation required as between the first and second appeal, and the time spent arguing the two appeals, which were heard together. 21. There is no doubt that the way in which the appellant conducted the appeals, as distinct from the basis on which he instituted them, contributed to substantial cost, inconvenience and frustration for the respondent. Were there a basis set out in s 181(2) to award costs against the appellant for such conduct it is inevitable that such an order would have been made. Outcome 1. The applications for costs are refused. C Muir Commissioner ********** 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: 24 July 2024