Andrew Broughan v Health Hub Chiro Newstead Pty Ltd [2023] FWC 2160

1 Fair Work Act 2009 s.372—General protections Andrew Broughan v Health Hub Chiro Newstead Pty Ltd (C2023/2418) COMMISSIONER SIMPSON BRISBANE, 29 AUGUST 2023 Application for costs – Application dismissed [1] This Decision arises from a General Protections application made under s.372 of the Fair Work Act 2009 (the Act). [2] Mr Andrew Broughan (the Applicant) was represented by Unfair Dismissals Australia (UDA). UDA filed a Form F8C – General protections application not involving dismissal on the Applicant’s behalf on 28 April 2023, alleging that Mr Broughan had been subjected to adverse action by Health Hub Chiro Newstead Pty Ltd (Health Hub/the Respondent), in contravention of ss.340 and 357 of the Act. [3] On 12 May 2023, Matthew Sulman & Associates (MSA) filed a Form F8A – Response to general protections application on behalf of the Respondent. In it, the Respondent agreed to take part in a conference convened by the Fair Work Commission (the Commission). [4] Accordingly, the matter was listed for a conciliation conference in accordance with s.374 of the Act on 7 June 2023. The conference was not successful in resolving the dispute. [5] On 14 June 2023, UDA filed a Form F54 – Notice of representative ceasing to act, advising that it no longer acted for the Applicant in respect of the matter. [6] On 21 June 2023, MSA lodged a Form F6 – Application for costs made under ss. 376 and 611 of the Act on behalf of the Respondent, naming Mr Broughan and UDA as the first and second Costs Respondents respectively. Included in the Form F6 was a costs schedule, claiming a total amount of $7,370.00. [7] I issued Directions for the filing of submissions in relation to the costs application. Each party filed submissions accordingly, and on 12 July 2023 I informed the parties that I would determine the costs application on the papers on the basis of the material before me. Background [2023] FWC 2160 DECISION -- 1 of 11 -- [2023] FWC 2160 2 [8] The Applicant’s s.372 application was made after the Respondent terminated its contractual relationship with the Applicant on 30 March 2023. The Applicant was said to be an independent contractor and had been engaged by the Respondent as a chiropractor for approximately 2 years. [9] The contract between the parties provided that the Applicant was to be reimbursed for reasonable and necessary expenses from time to time, as approved by the Respondent. The Applicant stated that he was involved in two disputes with the Respondent in relation to expenses. The Applicant stated that the first dispute related to redirection of 50% of the expenses incurred by the Applicant in the provision of his services. The Applicant submitted that it had been verbally agreed between the parties that this amount would be directed towards online marketing for clients, but was instead used to pay another employee’s wage. The second dispute alleged by the Applicant was that he was not provided with a tax invoice by the Respondent in relation to his expenses. [10] Following these disputes, the Applicant set out that he made a workplace complaint. The Applicant argued that his contract with the Respondent terminated because he had made this complaint, in contravention of s.340 of the Act. The Applicant further stated that the Respondent had contravened s.357 of the Act, by misrepresenting employment as an independent contracting arrangement; however, the Applicant did not provide any further explanation as to how this alleged contravention was made out. [11] The Respondent disputed that it took adverse action against the Applicant in contravention of ss.340 and 357 of the Act. It stated that the termination of the contractual relationship with the Applicant was based on the Applicant’s unsatisfactory work performance and misconduct. [12] The Respondent denied the Applicant’s allegations in relation to the disputes about pay and entitlements. It contended that it provided details of expenses incurred on a weekly basis, including whether the Applicant was entitled to reimbursement for such expenses. The Respondent stated that it was also able to provide, upon request, invoices for the expenses. [13] In its response to the application, the Respondent argued that the Applicant had not provided documentation for his allegations, and as such the allegations were “manifestly groundless”. The Respondent stated that the application was therefore made vexatiously, without reasonable cause, and without a reasonable prospect of success. Relevant legislation [14] Section 376 of the Act states: “376 Costs orders against lawyers and paid agents (1) This section applies if: (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and -- 2 of 11 -- [2023] FWC 2160 3 (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative. (2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because: (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute. (3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377. (4) This section does not limit the FWC’s power to order costs under section 611.” [15] Section 377 of the Act states: “377 Applications for costs orders An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.” [16] Section 611 of the Act states: “611 Costs (1) A person must bear the person’s own costs in relation to a matter before the FWC. (2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note: The FWC can also order costs under sections 376, 400A, 401 and 780 (3) A person to whom an order for costs applies must not contravene a term of the order. -- 3 of 11 -- [2023] FWC 2160 4 Note: This subsection is a civil remedy provision (see Part 4-1).” Cost Applicant’s Submissions Submissions under s.611 [17] Health Hub submitted that a costs order should be made against Mr Broughan pursuant to s.611(2) of the Act because his application under s.372 was made vexatiously, without reasonable cause and in circumstances where it should have been apparent to both Mr Broughan and UDA that the application had no reasonable prospect of success. [18] Health Hub set out that on 8 May 2023, MSA telephoned UDA, requesting copies of relevant supporting documents in relation to Mr Broughan’s s.372 application. In addition, Health Hub stated that it proposed an offer of settlement, but that no response was received from UDA or Mr Broughan. [19] During the conference convened by the Commission, Mr Broughan acknowledged that the relationship between him and Health Hub was that of an independent contractor. Health Hub submitted that, despite my expressed preliminary view that Mr Broughan’s application was unlikely to succeed should it be determined by a Court, Mr Broughan nevertheless pressed his application and claim for payment from Health Hub. [20] Following the conference, MSA wrote to Mr Broughan and UDA, outlining what it considered to be deficiencies in the application, and proposing another offer of settlement. Health Hub stated that this offer was ignored by Mr Broughan. [21] On the basis of its position that Mr Broughan acknowledged he was not an employee of the Respondent, failed to file supporting evidence and did not respond to settlement offers, Health Hub submitted that Mr Broughan’s application was made vexatiously and/or without reasonable cause. [22] Health Hub further submitted that Mr Broughan’s application was an abuse of process as it did not disclose a reasonable case, and that for these reasons it should have been apparent to Mr Broughan that it had no reasonable prospect of success. Submissions under s.376 [23] Health Hub submitted that a costs order should be made against UDA pursuant to s.376(2)(a) of the Act because UDA encouraged Mr Broughan to start and continue his application where it should have been reasonably apparent that it had no reasonable prospect of success. In making this submission, Health Hub relied on its submissions made in support of its application under s.611 of the Act, insofar as they related to Mr Broughan’s application having no reasonable prospects of success. [24] Health Hub contended that it informed UDA that Mr Broughan’s application was without supporting evidence, and that despite this, UDA did not provide supporting evidence and instead advised Mr Broughan to press his application. Health Hub stated that UDA -- 4 of 11 -- [2023] FWC 2160 5 unreasonably encouraged Mr Broughan to start and continue his application, and that this caused Health Hub to incur substantial legal costs. First Cost Respondent’s Submissions [25] In responding to the Costs Application, Mr Broughan stated that he made the application because he was owed $24,718 in unpaid entitlements. Mr Broughan also rejected the submissions made by Health Hub in its Form F8A Response regarding his alleged misconduct. [26] Mr Broughan submitted that before making his application, he initially sought a separate legal opinion. In this regard, Mr Broughan provided evidence of an email exchange between himself and Elizabeth Devine of Devine Law. This exchange involved discussions regarding Mr Broughan’s prospect of success if he were to bring an application for an unfair dismissal remedy under s.394 of the Act. [27] Mr Broughan stated that due to the costs associated with Devine Law, he then consulted UDA, who he stated informed him that he had a good case and that UDA had a 95% success rate in terms of achieving settlement for its clients. [28] Based on a legal opinion from two sources, Mr Broughan stated that he proceeded to make his application. He submitted that he believes he was not provided with correct or sufficient advice, and that, if anyone, UDA should be liable for costs. Second Cost Respondent’s Submissions [29] The Second Cost Respondent submitted that Mr Broughan was engaged by the Costs Applicant in the capacity of Chiropractor, and Mr Broughan believed his engagement with the Costs Applicant was not a true independent contracting arrangement. The Second Costs Respondent submitted that Mr Broughan sought guidance from the Fair Work Ombudsman, who provided him advice and this was forwarded to the Second Cost Respondent. UDA submitted that at the time it was only aware of a verbal contractor agreement. UDA submitted that in line with the preliminary view formed by the Ombudsman that Mr Broughan may have acted in the capacity of an employee, UDA offered assistance in relation to lodging a Form F8C. [30] Mr Broughan sought to lodge the Application and requested UDA act as his Representative in the manner. The Second Cost Respondent submitted that Mr Broughan also instructed it that he remained unpaid for an amount of work, and that the Cost Applicant’s decision to terminate his agreement was on the basis of a workplace complaint related to non- payment. The Second Cost Respondent also submitted that the Costs Applicant made a number of slanderous allegations pertaining to Mr Broughan’s character and work ethic, and also allegations Mr Broughan owes the Costs Applicant an amount of money related to overpayment. The Second Cost Respondent submitted that on the other hand, Mr Broughan instructed it that Mr Weddell of the Cost Applicant was unscrupulous, failed to pay Mr Broughan appropriately, and embezzled funds. [31] The Second Cost Respondent submitted there existed a stark contrast between the facts as purported by the Costs Applicant, and Mr Broughan. -- 5 of 11 -- [2023] FWC 2160 6 [32] The Second Cost Respondent submitted that the starting position under s.611 of the FW Act is that parties pay their own costs for proceedings before the FWC, and the Commission may order one party to the pay the other’s costs if that the person's application or response to an application was made vexatiously or without reasonable cause, or it should have been reasonably apparent that the person's application or response to an application had no reasonable prospect of success. The Second Cost Respondent submitted the Costs Applicant has not met the threshold test to be awarded costs. [33] The Second Cost Respondent said in relation to s.376(1), whilst it acknowledged the Commission’s Explanatory Memorandum, Fair Work Amendment Bill 2012, at no stage did the Second Cost Respondent represent Mr Broughan at the conference held on 7 June 2023. The Second Cost Respondent submitted that it wrote to the Commissioner Simpson’s Chambers on 6 June 2023, indicating that Ms Gamaralalage would no longer be representing Mr Broughan, and Mr Paul Cott acted as Mr Broughan’s Representative on the day of the scheduled conference. The Second Cost Respondent submitted that Mr Cott is not an employee of UDA, nor affiliated with UDA in any way. [34] It is noted that an email was received in chambers at 9.37am on 6 June 2023 that read as follows: “Good morning, We wish to confirm the above case scheduled for conciliation tomorrow will no longer be handled by Ms Gamaralalage. The matter will now be handled by Mr Paul Cott. He can be contacted on [number redacted] and the Applicant can be contacted on the number listed on the Form F8C. Regards,” [35] It is apparent from this email that it was not sent to the Costs Applicant or their representative. The Second Cost Respondent submitted that it cannot comment on the discussions held between the parties on the day. However, the Second Cost Respondent submitted that any without prejudice discussions held during the conciliation conference cannot be used on a question of costs, as to do so would “have the potential to do great damage to the conciliation process which is such a central part of the Commission's work.” Referring to a decision in McKenzie v Meran Rise Pty Ltd T/As Nu Force Security Services. The following passage was also referred to from the same decision: “An offer of settlement made in conciliation proceedings is by its nature made on a without prejudice basis. It is inappropriate that an offer made in those circumstances should be taken into account in a costs application unless the offer is subsequently repeated on an open basis. It has long been accepted that positions taken in conciliation are without prejudice to the position to be taken in arbitration. The protection afforded to participants by this principle is an essential feature of conciliation proceedings.” -- 6 of 11 -- [2023] FWC 2160 7 [36] The Second Cost Respondent also relied on a decision in Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café 2011 FWA 651 at [33] where Deputy President Bartel said as follows: “…it is not appropriate to allow statements and offers made in a confidential conference to be relied upon in subsequent proceedings. To do otherwise carries with it a real risk that the efficacy of the conciliation process will be diminished.” [37] The Second Cost Respondent submitted that in relation to both offers made by the Costs Applicant, none of them were genuine commercial offers made in good faith as the first made an unsubstantiated allegation Mr Broughan owed the Costs Applicant $9,000, and so made an offer the Cost Respondent pay back this alleged $9,000. In addition, it made unsubstantiated claims concerning sexual misconduct. It was submitted that the second offer made post- conciliation, again reiterated payment of the $9,000 in addition to Mr Broughan having to pay for the Costs Applicant’s ‘exorbitant’ costs in the matter. The offer also included threats regarding AHPRA and the Costs Respondent’s practicing certificate. [38] The Second Cost Respondent submitted that notwithstanding, it was unable to obtain instructions from Mr Broughan in relation to the above offers, and as a result of the non- communication with Mr Broughan, UDA filed a Form F54. The Second Cost Respondent submitted that in Khammaneechan it was held that ‘encouraging’ a person to start, continue or respond to a matter requires a ‘positive act’ on the part of the paid agent, not merely an absence of discouragement. It was submitted that no evidence of such encouragement exists. UDA did nothing more than represent the interests of Mr Broughan based on the information provided by him. Further, as was discussed in Khammaneechan, “Contrary to the implied submission…the fact that an applicant continues with proceedings which may have no reasonable prospect of success does not, in itself, lead to the conclusion that his or her lawyer or paid agent encouraged the applicant to do so.” It was submitted that UDA did not cause for costs to be incurred, because it was highly likely Mr Broughan would have continued with his claim regardless. [39] The Second Cost Respondent also submits that at 3.2 of the F8A lodged by the Costs Applicant, they indicated they wished to attend a Conference, and in that sense, any costs incurred by them was self-inflicted. They were at liberty to decline to attend. The Second Cost Respondent submitted that it was not reasonably apparent that the application would have no reasonable prospect of success referring to the Full Bench decision in A Baker v Salva Resources Pty Ltd where it was determined that the expression “[S]hould have been reasonably apparent” must be objectively determined, and a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution. The Second Cost Respondent submitted that given the stark instructions provided by the respective parties to the application, and stark set of contested facts, it is not at all possible to conclude that the application had no reasonable prospects of success. [40] It was further submitted in the Full Bench decision in the matter of Deane v Paper Australia Pty Ltd , concluded that the approach to “should have been reasonably apparent” and had no reasonable prospects of success” should be examined “upon the facts apparent to the applicant at the time of instituting.” The Second Cost Respondent submitted that there is nothing to suggest it was reasonably apparent that the Applicant had no reasonable prospects of success at the time the application was filed. It was submitted that at all material times, UDA was merely acting in the interests of Mr Broughan. The Second Cost Respondent also relied -- 7 of 11 -- [2023] FWC 2160 8 on the decision in Paul Andrews v Cooperative Research Centre for Advanced Composite Structures Ltd T/A Advanced Composite Structures - Australia [2011] FWA 2575 at [26] where it noted: “… the Applicant was entitled to pursue his claim and have it tested and Mr Tucker was entitled, and in fact did, represent the interests of the Applicant based on proper professional conduct and legal professional privilege.” [41] The Second Cost Respondent submitted that the First Cost Respondent was not in receipt of any reasonable offers of settlement from the Respondent, rather, bullying tactics, slanderous accusations of character, and further, the Costs Applicant would be unable to rely on any conduct or omission in relation to the conciliation conference, given its confidential nature. The Second Cost Respondent said after a second offer of settlement by the Costs Applicant in an open nature, the Second Cost Respondent was unable to establish contact with Mr Broughan and receive instructions in relation to the offer. As such, a Form F54 was filed. Costs Applicant’s Further submissions [42] The Cost Applicant filed submissions on 10 July and amended submissions on 11 July 2023 in addition to the grounds for costs that it had earlier set out. [43] The Cost Applicant submitted in response to the Second Cost Respondent that the belief that the First Cost Respondent was not an independent contractor was not substantiated by any evidence and was abandoned immediately upon the opening of the hearing of the application. The Costs Applicant submitted that that the allegation that there was a verbal contractor agreement is contradicted by electronic copies of the written Contractor Agreement being sent to Mr Broughan and to the Second Cost Respondent immediately upon receiving the Application. The Costs Applicant submitted that the Second Cost Respondent chose not to respond to the Cost Applicant or to provide the supporting evidence requested so as the Cost Applicant could properly understand the case alleged against it. [44] The Cost Applicant said it does not concede that there was any sham arrangement, and the allegation is denied “vehemently”. The Cost Applicant said the alleged instructions received from the Second Cost Respondent by the First Cost Respondent that he remained unpaid for work was not supported by any evidence, and it follows therefore that the Second Cost Respondent based their decision to encourage and represent Mr Broughan solely upon the hope of financial benefit and without having considered at all any supporting evidence or the legal basis upon which Mr Broughan was filing his Application. The Cost Applicant said the alleged “slanderous allegations” made are supported by evidence and can be corroborated by witnesses, and this evidence will be tendered in any subsequent proceedings. [45] The Cost Applicant submitted its version of events are supported by evidence, and the First Cost Respondents’ version of events are not supported by evidence. Despite several requests for supporting evidence and to better elucidate the basis upon which the Application was being made, the Cost Respondents neglected to provide such evidence or explanation. The Costs Applicant submitted that the record will indicate that the application was dismissed because the Applicant (Cost Respondent) had no grounds to proceed and no reasonable prospects of succeeding on the matters raised in the Application. -- 8 of 11 -- [2023] FWC 2160 9 [46] The Cost Applicant submitted that there was no evidence whatsoever to support the Application and so there were no reasonable grounds for succeeding upon it. The Costs Applicant submitted that the Commissioner expressed an opinion pursuant to s. 595(2) to the effect that he was satisfied that the Cost Applicant would succeed in their Response to the Application. The Costs Applicant submitted that when one considers the reason for this one is automatically drawn to the conclusion that the Application made had no reasonable prospects of succeeding and ought not to have been brought or continued with. [47] The Costs Applicant submitted that the Second Costs Applicant quite clearly represented Mr Broughan before the Fair Work Commission on 7 June 2023 and was the representative on the record on that date. The Costs Applicant said no copy of the communication of 6 June 2023 was provided to it, and the Rule in Jones v Dunkel therefore applies. As to the identity of Mr Paul Cott and his affiliation or otherwise with Second Cost Respondent, the Costs Applicant cannot say. The Costs Applicant said the Second Costs Respondent was the representative on the record until it filed and served Form F54 on 14 June 2023, and this is a fair indication that the Second Costs Respondent is attempting to mislead the Commission. [48] The Costs Applicant submitted in response to the Second Cost Respondent’s submissions concerning without prejudice discussions, that without prejudice discussions may also be relevant to the question of costs. The Cost Applicant said it did in fact make a formal offer to settle the proceedings in open correspondence forwarded to the Cost Respondents on 7 June 2023. [49] The Costs Applicant submitted that it is difficult to believe the Second Cost Respondent was not made aware of the issues to be raised with AHPRA relating to Mr Broughan’s misconduct and that the Cost Applicant sought repayment of $9,000 overpaid to Broughan by email of 8 May 2023. A copy of that communication is at pages 53-59 of the Costs Application and was also provided as part of the Employer’s Response to the Application. [50] The Costs Applicant submitted that the No Win, No Fee arrangement was an inducement and encouragement by the Second Cost Respondent to the First Cost Respondent to press its unmeritorious financial claim in the hope of garnering some monetary benefit despite the absence of any supporting evidence or proper basis of proceeding, and the only reason that the First Cost Respondent proceeded was that the Second Costs Respondent was prepared to represent him on a No Win, No Fee basis. The Costs Applicant submitted that is a positive encouragement and incitement to pursue the (groundless) application. [51] It was submitted that the Costs Applicant was faced with a claim for some $70,000 to $80,000 and a grave loss of reputation if the First Cost Respondent was successful in his claim against them. They were entitled to and chose to defend the action but placed the Cost Respondents on notice that it would be seeking costs against them on the basis that the application had no reasonable grounds for success. Conclusion -- 9 of 11 -- [2023] FWC 2160 10 [52] The email sent to chambers on at 9.37am on 6 June 2023 by the Second Cost Respondent should have been sent to the Costs Applicant at the time it was sent to chambers. The email itself did not state explicitly whether Mr Paul Cott was associated with the Second Respondent or not. The Second Respondent states in its material that he was not. I do not recall the matter being specifically raised in the course of the conference on 6 June 2023. Ultimately, I have concluded that in any event, whether the Second Cost Respondent was continuing to act on behalf of the First Cost Respondent up until the filing of a Notice Ceasing to Act is not determinative of the matter. [53] The Costs Applicant has criticised both Respondents for what it says was a failure to provide evidence to support the allegations made against the Costs Applicant, including that the First Cost Respondent remained unpaid for an amount of work. However, it is not required that an applicant in a general protections claim file their evidentiary case at the conference stage. There is no evidence in the strict sense before the Commission at the conference stage, and only submissions and documents provided to support submissions made in private conference. [54] It is also the case that the Costs Applicant ticked the box on the Form F8A Response to the application agreeing to participate in a conference. There is no requirement to participate in a conciliation conference conducted by the Commission following the filing of a section 372 application. The Costs Applicant elected to participate in the conference, and also elected to engage a lawyer to represent them at the conciliation conference. [55] The Costs Applicant submitted that the record will indicate that the application was dismissed because the Applicant (Cost Respondent) had no grounds to proceed and no reasonable prospects of succeeding on the matters raised in the application. A conference conducted under section 372 is a private conference and there is no recording of the conference. The Costs Applicant’s submission that the application was dismissed at the conference is incorrect. The Commission has no power to dismiss an application under section 372. [56] It is asserted that a complaint in relation to remuneration the First Cost Respondent had received was raised with the Costs Applicant, and the Costs Applicant brought the relationship between them to an end shortly after. If it was the case that the relationship between the parties was ultimately found to be one of employment, and not a contracting arrangement, and the First Costs Respondent had made a compliant or enquiry as asserted, then it would at least fall within the meaning of a workplace right, which I understood was the workplace right the First Cost Respondent sought protection under when referring to section 340 in the Form F8C application. [57] It is true that an opinion was expressed by me during the conference that the First Cost Respondent’s grounds for alleging adverse action would be unlikely to succeed in Court. The opinion as expressed in the conference was made in the context of the recent High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1, ZG Operations & Ors v Jamsek & Ors [2022] HCA 2 that the law has changed in the context of the existence of a written contract between the parties. However, the High Court decisions should not be read such that in all circumstances where a written contract exists describing the arrangement as contracting, that it will be a is a complete answer to the dispute. -- 10 of 11 -- [2023] FWC 2160 11 [58] It does not follow that the Commission expressing that opinion in the course of the conference means that the application was made vexatiously or without reasonable prospects cause. Just as it does not follow that the existence of written contracting agreement makes the application vexatious or without reasonable prospects. Whilst the First Cost Respondent’s case appeared weak, it could not be said that it was hopeless at the time of the conference, and there were facts in dispute between the parties that would need to be resolved, including in relation to the First Cost Respondent’s submission that the contracting arrangement was a sham. [59] I have considered the Costs Applicant’s submission that the Second Cost Respondent unreasonably encouraged Mr Broughan to start and continue his application when it should have known that the case First Cost Respondent’s application could not succeed. Having considered all of the material, I am not prepared to accept that the Second Cost Respondent encouraged the First Cost Respondent to start, continue or respond to the dispute when it should have been reasonably apparent to the Second Cost Respondent that the First Cost Respondent had no prospect of success. I am also not satisfied that I should award costs on the basis of an unreasonable act or omission of the Second Cost Respondent in connection with the conduct or continuation of the dispute. [60] I have concluded not to award costs against the First and Second Cost Respondents under either section 611 of section 376. In the event that I had been satisfied that I may have issued costs against the First or Second Cost Respondents, I would not have been inclined to exercise my discretion to do so given all the particular circumstances as set out above. The applications for costs are dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR765644> -- 11 of 11 --