In Nigel Stock v Rocla Ltd [2022] FWC 2597 Deputy President Clancy states
[33] In the period leading up to his termination and throughout the conduct of this proceeding, Mr Stock has enlisted the assistance of Mr Alex Smith, a “non-paid representative.” It is also apparent Mr Stock utilised template correspondence prepared by “De Cline”, which I am satisfied is a moniker used by Mr Smith. This is because subsequent to determining Mr Stock’s unfair dismissal application, I heard and determined another unfair dismissal matter in which Mr Smith was involved, Jemimah Scale v Coles Supermarkets Australia Pty Ltd (Scale). In Scale, it was apparent that Mr Smith was similarly using the moniker “De Cline” and the same or very similar template correspondence described as having been prepared by “De Cline.”
[34] Mr Smith advocated on Mr Stock’s behalf at the hearing and it is evident he has maintained involvement, having filed Stock’s submissions in response to Rocla’s costs application. Despite the arguments he advanced in this matter (and Scale) being unsuccessful, Mr Smith has nonetheless persisted with them in resisting, on behalf of Mr Stock, this application for costs. In particular, the costs submissions Mr Stock filed on behalf of Mr Stock state, inter alia:
“...2. The living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD (COST APPLICANT), were put on Legal Notice on several occasions with regard to the COST APPLICANT’S COVID-19 policy/directions that were in fact unlawful/ illegal and, as such, were: 2.1. given several opportunities to provide the law relied upon for the COVID-19 policy/directions, more specifically in terms of the legislative, statute, federal Act; 2.2. made aware by failing to do so the living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD, AQUIESCED that no such law nor authority existed; 2.3. made aware that the claimed COVID-19 vaccines were not approved. There are vast amounts of information available on various Government sites, such as reaffirming this fact that the current claimed COVID -19 vaccines are all only provisionally approved and are a part of a CLINICAL-TRIAL, thus making the coercion direction policy void ab initio.
3. The company employees of the ROCLA PTY LTD (COSTS APPLICANT) claim they had no choice but to comply with a mandate, however, the prima facie evidence is that the COSTS APPLICANT had the same choice as everyone else - namely, with regard to participating in the mandate - the COSTS APPLICANT had the choice to accept or DECLINE. ROCLA PTY LTD (COSTS APPLICANT) chose to accept, however that acceptance does not apply to any employees who choose not to do so.
4. It is the absolute fact that no law exists permitting coercion/pressure with threat and menace to participate in a clinical trial, in this instance, the CLAIMED COVID-19 clinical trial vaccine.
5. Regardless of the outcome of the Commission, there are no grounds for any form of costs order against the Nigel STOCK (COSTS RESPONDENT). ROCLA PTY LTD (COSTS APPLICANT) made it clear in the unfair dismissal case that there were no vexatious or malicious actions in play with regard to Nigel STOCK’s actions, and as such, as for any claims that the application was doomed from the beginning shows a lack of probity on behalf of ROCLA PTY LTD (COSTS APPLICANT).
6. The application for Costs is DECLINED, DECLINED, DECLINED.
7. Any further actions will be seen as deliberate vexatious and malicious conduct towards Nigel STOCK (COSTS RESPONDENT) Regards Alex SMITH on behalf of Nigel STOCK 19 JULY 2022”
[35] In addition to this matter and Scale, I have noted that Mr Smith has been involved in at least these additional unfair dismissal applications decided by the Commission during 2022:
1) Elizabeth Cogger v New Horizons Enterprises Limited, determined on 24 May 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar, if not identical, submissions were advanced by Mr Smith;
2) Shantay Moriah May v Wesley Mission Queensland, determined on 28 June 2022 and in which it would appear some correspondence substantially similar, if not identical, to “De Cline” template correspondence was used and similar submissions were advanced by Mr Smith;
3) Fiona Howard v Uniting Care Health, determined on 15 July 2022 and in which submissions advanced by Mr Smith were described as being neither helpful nor persuasive and simply a re-ventilation from earlier unsuccessful efforts by him;
4) Emma Frances Sommerville v University of Tasmania, determined on 15 July 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced; and
5) Mills & Ors v Village Roadshow Theme Parkes Pty Ltd, determined on 31 August 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced in four related applications.
[36] My experience of Mr Smith was that despite evincing an attitude to the Commission that was belligerent, verging on dismissive, he has nonetheless been intent on persisting with certain submissions despite grudgingly acknowledging during the conduct of Scale that it was for a court to determine the legality or otherwise of public health orders and directives. In the two matters in which he appeared before me, Mr Smith attempted to advance propositions that were plainly incorrect, such as contending that any line managers who had sought to ensure their employer’s compliance with public health orders would be held personally liable for any adverse consequences that flowed. While representing Jemimah Scale, Mr Smith himself sent correspondence to a line manager accusing him of criminal activity and threatening his arrest.[29]
[37] Mr Smith appears to have persisted with the same or similar strategies and submissions in ten different unfair dismissal applications before five different Commission Members presiding in four states. Even though Mr Smith has continued to be unsuccessful, he does not yet appear to have modified his approach. In his most recent attempt at representation, Mr Smith stooped to advancing the submission that there is “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole.”
[38] My conclusion is that despite Mr Stock appearing to have invested significant trust in Mr Smith, the role Mr Smith has played while purporting to represent Mr Stock has been reckless to the point of deleterious. While employed, Mr Stock relied on the ‘notices’ prepared by “De Cline” that in my view comprised “a disparate collection of concepts and assertions that lacked a coherent thread.” These notices did not assist, and I maintain my previously stated view. I also note that even though Mr Stock was on notice that Rocla would pursue costs against him from 7 April 2022 if successful, Mr Smith insisted on advancing such arguments at the hearing as the proposition that Mr Stock was not capable of being a manufacturing worker covered by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) because the concrete stormwater and drainage pipes and range of precast products produced and distributed by Rocla were not goods. These are just two examples of the poor quality of Mr Smith’s “representation.”
[39] No doubt Mr Stock was aggrieved by the circumstances that befell him and anxious about the implications of being dismissed from his employment, but this would not ordinarily absolve him of all responsibility for filing an unfair dismissal application without reasonable cause and when it should have been reasonably apparent to him that it had no reasonable prospects of success, or for causing Rocla to incur costs by failing to discontinue the matter. Ultimately, however, I am persuaded that the particular circumstances of this case save Mr Stock because having had the misfortune to fall under the influence of the stubborn, misguided and almost wholly incompetent Mr Smith, I do not consider that Mr Stock should have a Costs order visited upon him.
[40] Nonetheless, the involvement of Mr Smith cannot be left uncommented upon. As I have outlined, the “representation” provided by Mr Smith has been a feature of at least ten unfair dismissal applications before the Commission during 2022. None have succeeded but, in each case, the respondent to the application has been required to comply with directions of the Commission and commit the necessary resources to defend its position at both conciliation and during the arbitral process. Additionally, a not insignificant amount of the Commission’s time and resources has been absorbed dealing with the applications spearheaded by Mr Smith and this has been at the expense of other parties with matters before the Commission. Had Mr Smith been a lawyer or paid agent, he would have fallen within the meaning of a “representative” in s.401 of the Act and at risk of being the subject of an application for costs in some or even all of those matters. However, as things currently stand, there is a regulatory gap in the Act when it comes to individuals such as Mr Smith who impose themselves on the Commission’s processes with all care, no responsibility and no “skin in the game.”
In Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438 the Court states
[16] In a notice of appearance dated 4 July 2022, Amber and Wenico entered an appearance for the named defendants as ‘Attorney of Records ... appearing under duress for the beneficiaries as the Defendants are the injured party in this matter’. In statutory declarations dated 7 July 2022 and filed in the proceeding, Amber and Wenico say they each ‘deposited the natural person into a private trust’ (which I understand to be called ‘the Mane Trust’), in respect of which Amber has been appointed power of attorney. In their written submissions dated 25 July 2022, the defendants assert that ‘Amber, the woman, and Wenico, the man, are the Creditor’s [sic] and acting as agent for the Defendants, whom in the legal realm, the Defendants are seen as the Creditor’s [sic]’.
[17] The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence.
