Alena Ford v Fish Liquor Pty Ltd T/A Marina Quays International
[2011] FWA 785
•4 FEBRUARY 2011
[2011] FWA 785 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alena Ford
v
Fish Liquor Pty Ltd T/A Marina Quays International
(U2010/3070)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 4 FEBRUARY 2011 |
Section 611 - costs application - whether non-participation constitutes a response - unreasonable act or omission.
[1] On 1 September 2010 Ms Alena Ford made an application pursuant to s.611 of the Fair Work Act 2009 (the Act) for an order for costs against Fish Liquor Pty Ltd t/a Marina Quays International (Fish Liquor).
[2] The costs’ application followed a hearing on 16 August 2010 in relation to Ms Ford’s application for relief pursuant to s.394 of the Act. There was no appearance for Fish Liquor at the hearing and the matter proceeded in the respondent’s absence, because I was satisfied that Fish Liquor had been properly notified of the listing of the matter.
[3] In my reasons, delivered orally, I found that Ms Ford’s dismissal had been harsh, unjust and unreasonable, and an order was made awarding her the sum of $25,318.00.
[4] Ms Ford now claims that the respondent acted vexatiously or without reasonable cause and seeks a costs’ order under s.611(2)(a) of the Act. Additionally, or in the alternative, she contends that the respondent responded to the application in circumstances where it was reasonably apparent that it had no reasonable prospects of success, and that an order for costs should be made under s.611(2)(b) of the Act.
[5] The relevant provisions of the Act are set out below:
“611 Costs
(1) A person must bear the person’s own costs in relation to matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1)”
[6] On 7 September 2010 I issued directions requiring both parties to file and serve full written submissions in relation to the application for costs. The applicant by 24 September 2010, and the respondent by 8 October 2010.
[7] The applicant, but not the respondent, complied with these directions. New directions were issued on 20 October 2010 to extend the respondent’s time for filing to 6 November 2010.
[8] On 5 November 2010 the Chief Financial Officer for the respondent, Mr Philip Sissons, sent an email to my Chambers. The content of that email is set out below:
“Dear Sir,
Our ability to participate in this matter in a conciliatory manner was denied us [sic] due to the fact that we were unable to have the hearing adjourned due to the fact that our company representative, Mr. Chris St Clair was overseas at the time of said hearing.
We have followed the instructions of Senior Deputy President Kaufman at all times and the applicant has been paid in full and we respectfully request that costs in this matter be borne by both parties as incurred.”
[9] The above email is the extent of the material provided by the respondent in respect of this application. It is clear from the email that the respondent opposes an order for costs. However it has provided no assistance to the consideration of the application.
[10] Having regard to my conclusion it is not necessary to deal with the issue raised by the respondent in the 5 November 2010 email.
[11] As the respondent in its 5 November 2010 email did not seek to contest any of the propositions put by the applicant in her submissions as to costs, I decided that a further hearing was not necessary and that this matter could be dealt with on the material provided.
[12] It is clear under s.611(1) of the Act that the general rule is that parties will bear their own costs in proceedings before Fair Work Australia. Section 611(2) provides an exception to this general rule. Where an application for an order for costs is brought against a respondent, Fair Work Australia, under s.611(2) of the Act, can make an order for costs where the respondent responded to the application for relief vexatiously, or without reasonable cause, or where it should have been reasonably apparent to the respondent that its response had no reasonable prospect of success.
[13] It is clear that s.611(2)(a) will apply if “the first person responded to the application...” and s.611(2)(b) if there was a “response to the application”. As a preliminary issue, I must determine whether the course of conduct taken by the respondent in the substantive proceedings in relation to Ms Ford’s unfair dismissal application can be said to constitute a response for the purposes of s.611(2) of the Act.
[14] The respondent did not participate in the scheduled telephone conciliation in any meaningful way; the applicant submits that the conciliation was unilaterally terminated at the respondent’s initiative in the early stages of the conciliation. This is not challenged by the respondent. The respondent did not comply with Fair Work Australia’s directions for the filing of submissions and materials, and failed to attend the arbitration hearing on 16 August 2010.
[15] It is clear however that the respondent was aware of, and sought to contest, Ms Ford’s application. It filed a Form F3 Employer’s Response prior to the telephone conciliation, which disputed the grounds for which Ms Ford was seeking relief. The respondent also made several adjournment requests prior to the arbitration.
[16] It seems to me that as the respondent neither appeared at the hearing, nor provided any material for which it could contest Ms Ford’s application it did not respond to the application. Its failure to participate in the proceedings simply allowed the s.394 application to proceed to determination unchallenged.
[17] It is relevant to note the legislative changes to the costs’ provisions as between the Act and its predecessor. Section 658(3) of the Workplace Relations Act 1996 (WR Act) provided that costs could be ordered where a party to a proceeding caused costs to be incurred by the other party because of an unreasonable act or omission in connection with the conduct of the proceeding. That element is not contained in the Fair Work Act 2009. Under s.401(1)(b) of the Act, an unreasonable act or omission remains a ground for making an order for costs however, only in relation to costs applications against lawyers and paid agents. It seems, therefore, that Parliament’s intention was to remove the ground of an unreasonable act or omission in respect of a costs’ application against an unrepresented party. 1
[18] Further, the WR Act provided at s.658(2)(b) that an order for costs could be made where a party acted unreasonably in failing to agree to terms of settlement that could lead to the discontinuance of an application. Section 611 provides no equivalent provision. I have difficulty in supporting the applicant’s submission that by not participating in the telephone conciliation in good faith, or by failing to respond to the settlement offer, the respondent can be said to have responded to the application for the purposes of s.611(2) of the Act.
[19] My analysis of s.611 led me to the view that the legislature has removed an unreasonable omission as a ground for which a costs order can be made in relation to an application of this nature; that is, where a respondent has refused to participate. As I had not raised this issue with the parties, I had my Associate write to the applicant’s representative on 6 January 2011 asking for a response by 13 January 2011 in respect of this issue. No response was filed.
[20] In the circumstances I cannot find that the respondent provided a response which can enliven s.611(2) of the Act. All that the respondent’s refusal to participate in the hearing did was require the applicant to make her case; something she had to do regardless of whether the respondent appeared or not.
[21] Ms Ford’s s.611 application is hereby dismissed.
SENIOR DEPUTY PRESIDENT
1 Ms Danielle Cartledge v Creasey’s Pty Ltd T/A Gold Sovereign Motor Inn[2010] FWA 7113 at [24]
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