Security for costs in the Fair Work Commission

It is reasonably common in the Australian civil courts for a party to seek an order from the relevant court requiring the other party to the litigation to deposit funds with the court as security for costs. Such orders are available where proceedings are demonstrably vexatious and thus expose the party seeking the order to the risk of a costs order not being met, or where the financial positon of the other party is perilous and it would be unfair for the court to require the applicant to participate in the proceedings in circumstances in which it is likely to be deprived of the benefit of an order for costs in the evet that it wins.

Given that costs orders are very rare in the Fair Work Commission, one would not expect this procedure to be successful very often; and so it is.

“Application for security of costs.

[1] This decision concerns an application for security of costs filed by TAFE Gippsland (the Respondent) on 13 August 2019 pursuant to s.404 of the Fair Work Act 2009 (the Act).

[2] TAFE Gippsland seeks an order against Andrew Lal for security for payment of costs for the amount of $10,000 in relation to his application for an unfair dismissal remedy on the basis that the Applicant refused to participate in a conciliation conference in respect of the unfair dismissal application; the Applicant has failed to respond to ‘without prejudice” correspondence from TAFE’s Gippsland aimed at resolving the unfair dismissal application; and the unfair dismissal application has no reasonable prospect of success.

[3] Proceedings were held before me by telephone on Friday, 16 August 2019. In those proceedings an Order was made amending the name of the Respondent from “federation Training” to “TAFE Gippsland”. 1After hearing the parties on the question of security of costs, I determined not to grant the application and advised those appearing that my written reasons for my decision would be issued at a later time after my return from a short period of leave. Over the past week the parties engaged in a conciliation before Commissioner McKinnon which resulted in the substantive matter being settled.

[4] The following are my reasons for decision on TAFE Gippsland’s security of costs application.

[5] Section 404 of the Act and Rule 55 of the Fair Work Commission’s Rules 2013 (the Rules) provides the Commission’s powers to order security of costs:

“404 Security for costs

The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.”

“55  Order for security for payment of unfair dismissal matter costs

(1)  A respondent or applicant in a matter before the Commission arising under Part 3-2 of the Act (unfair dismissal) may apply to the Commission for an order that a person provide security for the payment of costs in respect of the matter or part of the matter.

Note 1:       The application must be in the approved form—see subrule 8(2).

Note 2:       The Commission will not ordinarily make such an order before the conclusion of conciliation.

(2)  The person to whom an order made under subrule (1) applies must pay the amount of security at the time, and in the manner and form, required by the order.

(3)  If the Commission orders that security for the payment of costs be given in respect of a matter or part of a matter arising under Part 3-2 of the Act, a respondent or applicant in the matter may apply to the Commission to:

(a)  reduce or increase the amount of security to be provided; or

(b)  vary the time at which, or manner or form in which, the security is to be provided.

(4)  Without limiting any other power which the Commission may exercise, if the Commission directs a person to provide security for costs in relation to a matter or part of a matter arising under Part 3-2 of the Act, the Commission may order that the matter be:

(a)  adjourned until security is provided; or

(b)  adjourned indefinitely.”

[6] Whether to make a security for costs order (and the quantum and conditions attached thereto) is a discretionary matter. The principles governing the exercise of the discretion were discussed in Harris v Home Theatre Group Pty Ltd 2 by Deputy President Asbury as follows:

“[7] Principles relevant to the making of orders for security of costs can be summarised as follows. There is no absolute rule to control the exercise of the discretion to order security for costs, and what should be done in each case depends on the circumstances of the case with the governing consideration being what is required by the justice of the matter. The making of an order for security for costs should not be oppressive in that it would stifle a reasonably arguable claim.

[8] The financial position of the party against whom the order is sought, will be relevant in a number of circumstances. There is no absolute rule that impecuniosity of a party will entitle its opponent to an order for security for costs. There is also a general rule that poverty should not be a bar to a person prosecuting a claim at first instance. On appeal, the question of security is to be determined differently on the basis that the appellant has had his or her day in court, and should not be given a “free hit”, particularly in circumstances where the costs of a proceeding below had not been paid by the appellant.

[9] In cases where the impecuniosity of the party against whom the order for security for costs is sought, it is relevant that the impecuniosity is itself a matter which the litigation may help to cure or arises from the conduct the party is complaining of. In such circumstances the party against whom the order is sought should not be shut out of litigation.

[10] The prospects of success and the strength of the case of the party resisting the order is relevant. In Merribee (Supra) Kirby J said (citations omitted):

“Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party’s case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security of costs. Furthermore, if a party asserts that its opponent’s proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation.”

[11] In relation to costs, it is relevant that the nature of a proceeding is such that, even if successful, an order for costs might not be made or might be limited. The inability of a party to meet the costs of an unsuccessful proceeding, or the risk that a cost order will not be satisfied is also relevant to the exercise of the discretion. Other related considerations are that a party is, or is likely to be absent from the jurisdiction when a decision is made and has no, or few assets within the jurisdiction.

[12] There may also be aspects of public interest which are relevant to the exercise of the discretion to make an order for security for costs, such as an application raising matters of general public importance, quite apart from the interests of the parties. Other matters that have been considered relevant are that a hearing of the proceedings is close at hand, or the party seeking the order has delayed its application for such an order. It may also be relevant that the parties, or some of them, are legally aided.”

[7] These principles have been subsequently adopted by the Full Benches in Zornada v St John Ambulance Australia Western Australia) Inc 3 and Velasquez v Cabrini Health Limited.4

[8] It is apparent from these principles that security for costs orders, given the statutory scheme applicable to the unfair dismissal jurisdiction, are extremely rare. A party seeking such an order carries a considerable burden of persuasion:

“We further note that costs orders in this jurisdiction are extraordinary, and security for costs orders even more so. This is because the Act reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances.” 5

“The Full Bench is mindful that costs applications in the Commission are extraordinary and security of costs applications, even more so.” 6

[9] The approach to be adopted was summarised by the Commission in the following terms:

“In short, there is no absolute rule that controls the exercise of the discretion to order security for costs, and the outcome will depend on the circumstances of the case with the governing consideration being what is required by the justice of the matter. Matters relevant to the consideration will include the financial position of the party against whom the order is sought, the prospects of success and strength of the case of the party resisting the order, the prospects of a costs order being made even if the party seeking the order for security for costs is successful, whether a costs order will be satisfied if made, whether a party will be or will be likely to be absent from the jurisdiction when a decision is made and has no or few assets in the jurisdiction, whether the proceedings raise matters of general importance and whether the hearing of the proceedings is close at hand.” 7

CONSIDERATION

The financial position of the party against whom the order is sought

[10] While Mr Lal did not provide any direct written evidence of his financial situation prior to proceedings, during the hearing he did indicate to the Commission that he is currently not in receipt of any income given he is not presently employed, nor is he receiving Centrelink benefits. As such, and if this is a correct representation of his circumstances, he would likely be unable to make such a payment if ordered to do so. While I take account of Mr Lal’s claimed inability to make such a payment, I also note that such in and of itself is not a reason why the order should not be made. 8 Since there is no firm evidence of Mr Lal’s financial position, this factor is a neutral consideration in my determination.

The prospects of success of the case of the party resisting the order

[11] It is the Respondent’s case that Mr Lal was recruited as a TAFE teacher to carry out work in the TAFE Gippsland VCE Program, which it submits is required under the Victorian Registration and Qualifications Authority (VRQA) to engage teachers with registration from the Victorian Institute of Teaching (VIT). It submits that such was advised to Mr Lal during his interview and was a requirement under his first contract signed by Mr Lal on 9 April 2018 however, was the requirement was not provided for in his second contract signed 2 January 2019. 9 After numerous attempts to have Mr Lal produce his VIT registration TAFE Gippsland on 2 April 2019 dismissed Mr Lal on the basis of breach of contractual obligations by not providing evidence of his VIT registration.

[12] Mr Lal objects to his dismissal on the basis that while VIT registration was a requirement of his first contract, it was not a requirement of his second contract which was in place at the time of his dismissal. 10

[13] In considering the overall prospects of success of Mr Lal’s case, I do not consider them to be particularly strong, however, at this stage I am not persuaded that they are so weak as not to be tenable or able to proceed to a hearing.

[14] Even though there was, on the face of the first contract issued to him in April 2018, an obligation for Mr Lal to hold a VIT teaching registration, it appears from the evidence led during the hearing and within the material before the Commission, that proof of the Applicant’s registration was not sought by TAFE Gippsland until after Mr Lal’s employment commenced, and even then the request made took a rather long time to come to a head.

[15] I appreciate that at the time of the hearing that the Respondent had yet to provide its material in respect to the communications which actually did take place on the subject, but even on the most generous view of the material which is before the Commission, I would be unable to conclude that provision of proof of Mr Lal’s registration was something insisted upon by TAFE Gippsland immediately upon employment or very soon after its commencement.

[16] It is also the case that the Applicant appears not to have been stood down from his teaching duties until February 2019, some nine or 10 months after Mr Lal’s first employment. It was only at that time that TAFE Gippsland apparently formed the view, or at least acted upon it, that it would be a breach of its own duties to have Mr Lal engaged in teaching. I make no findings at this time as to the duties that the organisation is under. I make no finding as to the contractual obligations held by Mr Lal. However, as a matter of relevant merit, it needs to be taken into account that it was a somewhat long period culminating in February 2019 before the Applicant was ultimately and finally challenged about the absence of his teaching registration.

[17] A relevant question for the merits hearing would be why it took so long for TAFE Gippsland to insist on proof or registration or why Mr Lal was permitted to start employment without the registration, if in fact it was such a mandatory obligation.

[18] These observations lead me to a number of observations. In relation to the merits of the application, it is my view that the overall substantive application is probably weak for the reasons articulated in Respondent’s submissions which include the provision of a lack of cogent evidence or submissions by Mr Lal in respect of his case, as well as the likelihood of findings by the Commission that Mr Lal was contractually, if not legislatively, required to hold a teacher’s registration, with him apparently being ineligible for such registration, at least in Victoria.

[19] Nonetheless, there appears to be at least an arguable case on Mr Lal’s part that there may be a valid reason for termination, in which case it could not be ruled out entirely that there has not been an unfair dismissal.

[20] Having said that, I am concerned at this stage that Mr Lal does not understand that his case, at least in terms of documents and evidence, is essentially closed and that his opportunity to provide material to the Commission in support of his case was his response to filing Directions from the Commission which required his case to have been articulated through submissions, witness statements and documents to be filed by no later than noon Monday, 5 August 2019. He appears not to appreciate that the material that he has provided so far can only be added to by leave of the Commission and that a grant of such leave should not be presumed. If one were to take the Applicant’s case on the basis of the material which is so far before the Commission, one would have to say that of the six documents filed by Mr Lal, five of them do not assist his case and that the one which might appear to support his case does not compellingly do so.

[21] The relevance of pointing to those matters is that there may be some difficulties in Mr Lal establishing his case even on his own material. Nonetheless, the issues to which I have referred about the time taken by TAFE Gippsland to ascertain from Mr Lal whether he, in fact, was registered and then to ultimately stand him down from teaching duties, is such that one has to say there is, at least, an arguable case that there is an unfair dismissal.

The circumstances in which costs may be recovered under the FW Act

[22] In respect of the likelihood of costs being awarded against the Applicant in the event that his substantive case was unsuccessful, I take into account not only the matters I have referred to earlier, including that Mr Lal understands the strengths and weaknesses of his case far better than I do. Certainly, the material before the Commission would indicate that TAFE Gippsland has, through its Counsel, Ms Gulle, ensured that the Respondent has identified to Mr Lal the weaknesses in his case. I also take into account that Ms Gulle’s material indicates that there has been a proposal for settlement of the matter which has not been accepted by the Applicant (noting that I am unaware of its terms).

[23] If it is the case that there is a statutory obligation for TAFE Gippsland to require its teachers to be registered and if the evidence demonstrates the requirement was put to Mr Lal cogently and repeatedly during the period of his employment and if it is also the case that there has been a communication to the Applicant about those matters together with a proposal for settlement, it may well be that the continuation of his application falls into the category envisaged by the sections 400A or 611 of the Act both dealing with the matters of costs and with it following there may well then be an order for costs against the Applicant.

The risk that a costs order will not be satisfied

[24] Finally, I take into account the question of whether the risks that a costs order would not be satisfied.  At this stage, there is nothing before me that would particularly lead to any findings about the likelihood of a merits costs order being satisfied or not. As a result, this is a neutral consideration in my decision.

[25] Against the context set out above, I am not inclined to grant an order in the manner sought by the Respondent. In summary, while ultimately there is a low prospect of success on the part of the Applicant, I do not consider those prospects to be so low as to be not manifestly tenable. In the absence of cogent evidence on the subjects, Mr Lal’s financial circumstances of likelihood of compliance with a merits costs order. Further, to the extent that there is a discretion for me to make an order for security of costs, I consider it not appropriate to do so in the circumstances.”

Lal v TAFE Gippsland (2019) FWC 5663 delivered 26 August 2019 per Wilson C