Industrial Relations Commission of New South Wales CITATION: Mullins and New South Wales Department of Education and Training [2009] NSWIRComm 23 APPLICANT (on costs) New South Wales Department of Education and Training PARTIES: RESPONDENT (on costs) Keith Mullins FILE NUMBER(S): IRC 1471 of 2008 CORAM: Sams DP Costs - victimisation application - application out of time - Commission refused to exercise discretion to accept out of time application - costs reserved - further submissions - whether application frivolous and/or vexatious or brought without reasonable cause - costs sought for Counsel's fees only. CATCHWORDS: Held; applicant given three opportunities to address claim against him - failure to address costs application - appeal against substantive decision - request to adjourn costs application refused - meaning of frivolous, vexatious and instituted without reasonable cause - claim meets tests of being vexatious and brought without reasonable cause - costs orders made. LEGISLATION CITED: Industrial Relations Act 1996 Attorney General v Wentworth (1988) 14 NSWLR 481 Burton v Shire of Bairnsdale (1908) 7 CLR 76 CASES CITED: Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 6) [2008] NSWIRComm 163 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Keith Mullins v New South Wales Department of Education and Training [2008] NSWIRComm 236 HEARING DATES: Written submissions: 30 October 2008; 30 December 2008 DATE OF JUDGMENT: 5 March 2009 APPLICANT (on costs) Mr S Benson of Counsel Assisted by: Mr P Quinn LEGAL REPRESENTATIVES: New South Wales Department of Education and Training RESPONDENT (on costs) Mr K Mullins unrepresented JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 5 March, 2009 Matter No IRC 1471 of 2008 Keith Mullins and New South Wales Department of Education and Training Application by Keith Mullins for relief from victimisation under section 213 of the Industrial Relations Act 1996 DECISION ON COSTS [2009] NSWIRComm 23 1 In a decision published on 10 December 2008, Keith Mullins v New South Wales Department of Education and Training [2008] NSWIRComm 236, the Commission refused to exercise it's discretion to allow the applicant, Mr Keith Mullins' victimisation application to be accepted out of time pursuant, to s 213(4) of the Industrial Relations Act 1996 ('the Act'). 2 That decision is now subject to an appeal by the applicant and the appeal (Matter IRC 2430 of 2008) is listed before the Full Bench of the Commission on 28 April 2009. 3 In it's written submission in the earlier substantive matter before me, the New South Wales Department of Education and Training ('the respondent') sought an order for costs against the applicant. In his reply submission, the applicant did not respond to the costs application and, in giving him the benefit of the doubt, I invited him to respond in writing by 19 December 2008. In a submission subsequently filed by the applicant, he did not, in any way, address the respondent's costs application and curiously, listed his own costs, associated with his dismissed application. As a consequence, I directed him, in further correspondence from my Associate, to the relevant provisions of s 181 of the Act and invited him to again respond by 16 January 2009, to the costs claim against him. 4 No submission was received in my Chambers by that date (or at any time subsequently). However, on 10 February 2009, when the applicant appeared before his Honour, Boland J, President, for directions in his appeal, the applicant produced a filed copy of his submissions on costs which were identical to an unsealed copy which had been received by the respondent on 30 December 2008. In a letter dated 11 February 2009, the respondent attached the applicant's submission and requested that I now consider it's costs application, notwithstanding the appeal of the substantive decision was pending. The respondent relied on its earlier submissions in support of its application. 5 In his submission on costs, the applicant, while not expressly saying so, asked that I not deal with the costs application because he said 'I do not see justice in this case the matter is still on foot pending an appeal application to the Full Bench'. I rejected this request. My Associate wrote to the applicant in the following terms: As previously agreed by both parties, the decision on costs is to be made 'on the papers' and his Honour proposes to now consider his decision in that regard. Notwithstanding that your substantive victimisation application is now subject to an appeal by you, and that you have asked that no decision as to costs be published until the appeal is finalised, his Honour has asked me to inform you that it is the usual practice of an Appeal Full Bench to have all the issues before it for consideration. This makes for efficient case management and ensures that all decisions relevant to a particular matter, are dealt with in a final decision of the Full Bench. Accordingly, his Honour proposes to publish the costs decision before the appeal hearing date of 28 April 2008. You will be advised of the date of publication in due course. I now publish my reasons for decision. SUBMISSIONS 6 The respondent's submission was brief and I reproduce it in full: In the course of the directions hearing on 9 October 2008, the Department placed the applicant on notice that it would seek an order for costs in respect to the present proceedings on the basis that the application was: i. Frivolous and vexatious; and/or ii. Instituted without reasonable cause. A precedent for a costs application of a similar nature can be found in Simjanovska v RTA (No 6) [2008] NSWIRComm 163. In determining whether or not the proceedings were instituted without reasonable cause the Commission ought direct its inquiry to the merits of the claim made. In this regard, the proceedings do not have a clear jurisdictional foundation; the proceedings relate to what may be regarded as "stale" allegations in which the applicant has had considerable time to advance any claim he had wished to make. In considering whether or not the proceedings were frivolous and vexatious, again the Commission ought look at the substance of the proceedings, but the Commission ought also have regard to the merits of the claims in the context of the substantial number of other unmeritorious claims that have been brought by the applicant against the respondent in this Commission. The costs claimed by the respondent against the applicant are confined to counsel's costs of $3,740.00 (inclusive of GST). 7 Similarly, the applicant's submission was short, but unfortunately, again he did not address the arguments against him. Rather, he repeated that the respondent had breached various Acts, the Department of Education and Training's Code of Conduct and it's Corruption Prevention Policy. He referred again to his dismissal as being unlawful and said that his out of time application was 'broadly based on the detrimental circumstances that were forced onto me by DET exercising questionable delays in resolving my ordeal'. CONSIDERATION Costs Jurisdiction of the Commission 8 This costs application proceeds on two bases: firstly, that the applicant's victimisation claim was 'frivolous' and 'vexatious' and, secondly, that it was 'brought without reasonable cause'. 9 The Commission's jurisdiction to award costs in this matter is to be found in s 181(2)(a) and (b) of the Act: (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 (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or 10 An application for costs involves a two staged consideration of the claim in accordance with the legislative tests. First, the Commission must make a positive finding under s 181(2)(a), (b) and/or (c), and then rely on s 181(1) of the Act to consider whether, in the exercise of the Commission's discretion, costs should be awarded. 11 Section 181(1) is expressed as follows: (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. 12 The relevant principles that are applicable to this matter may be distilled from the following authorities: In Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, O'Connor J said: Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of this case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, Barwick CJ held: The test to be applied has been variously expressed: "so obviously untenable that it cannot possibly proceed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings "to stand would involve useless expense". Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481, defined the term 'vexatious' this way: 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. 13 These authorities were cited in Elka Simjanovska and Roads and Traffic Authority of New South Wales (No 6) [2008] NSWIRComm 163, a case referred to me in submissions by Mr S Benson, of Counsel, for the Department. I agree with him that that case is apposite to the disposition of this costs application. 14 Notwithstanding that the applicant has been given three opportunities to respond, in a meaningful way, to the respondent's costs application, he has unfortunately, chosen not to do so. He persists in agitating his alleged grievances with the respondent surrounding his allegations of victimisation in 2003 and his dismissal in January 2008. Relevantly, I note that he has not worked for the respondent since 24 November 2004, and an application under s 84 of the Act, relating to his alleged unfair dismissal in January 2008, was ultimately discontinued at his own request. It would seem that no matter what the Commission says, or relevantly directs his attention to, he is incapable, or unwilling, to properly focus on the case he is required to meet. I cannot do anything more to assist. He has been given more than enough latitude by the Commission. I simply cannot even get him to the 'starting block'. 15 With that said, I am nevertheless satisfied that the applicant's victimisation claim fits most, if not all, of the descriptors of 'vexatious' found in the authorities earlier cited. It is 'manifestly groundless', 'utterly hopeless' and 'obviously untenable that it cannot possibly succeed'. Moreover, I consider the proceedings were brought by the applicant to cause annoyance and unnecessary expense to the respondent and were thereby instituted without reasonable cause. 16 Three extracts from my decision of 10 December 2008, serve to demonstrate and fortify these conclusions: 4. It is relevant to observe at this juncture, that the applicant has lodged a number of applications under the Act in which he has sought various forms of relief, from what I understand to be essentially the same set of factual circumstances. These various proceedings were identified by Counsel for the Department as supporting its argument (in the present proceedings) that this application is either, frivolous, vexatious or brought without reasonable cause and should be dismissed. In summary, since November 2005, the applicant has brought an application for constructive dismissal: IRC 5948 of 2005, two applications for reinstatement of an injured worker: IRC 2784 of 2006 and IRC 459 of 2008, an application for unfair dismissal: IRC 156 of 2008 and a number of appeals in relation to decisions of members of the Commission: IRC 2789 and 3116 of 2006 and IRC 440, 980 and 1342 of 2008. It would be fair to say that the applicant, who has represented himself on most occasions, has been unsuccessful in all of these matters, in that they were either dismissed or discontinued. Notwithstanding the attractiveness of the respondent's primary submission that the present application should be dismissed forthwith, the Commission invited the parties at a listing on 8 October 2008, to file and serve submissions as to whether this application should be accepted out of time pursuant to s 213(4) of the Act. It is in consideration of those submissions and having regard for the relevant principles relating to late applications, that the Commission will determine this matter. ... 32 In my view, the applicant's overall conduct in filing numerous unsuccessful applications to this Commission concerning the same subject matter, amounts to an abuse of the processes of the Commission. It is apparent that he waits until one application has been concluded (and invariably dismissed or discontinued), and then trawls through other sections of the Act in the vain hope of finding a section which he believes he can apply to his particular circumstances. When on each occasion he has failed, he moves on to something else. Inevitably, this would mean he would be confronted with the difficulty of meeting strict time limitations to file particular applications. And so it has here. 33 Nevertheless, the applicant has received considerable indulgence from this Commission. I have already referred to the many applications and appeals he has filed. However, a point must be reached where he would be well advised to desist from this litigious and obsessive campaign against the Department and those he has complained about. In my opinion, that point has been well and truly reached. The applicant has told me that he has worked for a term this year in the private sector. My strong advice to him would be to seek further work in the private sector and move on with his life. 17 Accordingly, I have no hesitation in finding that the applicant's victimisation claim (Matter IRC 1471 of 2008) was 'vexatious' and 'brought without reasonable cause'. The respondent is entitled to the costs which it seeks, which I note, are limited to Counsel's fees only. I intend to make orders accordingly. ORDERS 18 Pursuant to s 181(1) and (2) of the Industrial Relations Act 1996, the Industrial Relations Commission of New South Wales orders that: 1. The applicant in Matter IRC 1471 of 2008, Mr Keith Mullins, shall pay to the respondent, the New South Wales Department of Education and Training, an amount for costs in the sum of $3,740.00. 2. Costs as ordered above shall be paid within 28 days of today. Peter J Sams, AM Deputy President 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.