Alexander M Pty Ltd v Gregory Lloyd - [2013] FWC 8795

[2013] FWC 8795

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.402 - Application for costs orders against lawyers and paid agents under s.401

Alexander M Pty Ltd
v
Gregory Lloyd; McDonald Murholme Solicitors
(U2013/14070)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 19 DECEMBER 2013

Application for costs against lawyers and paid agents.

[1] On 24 April 2013 Mr. Gregory Lloyd made an application under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. The employer, Alexander M. Pty Ltd, submitted that Mr.Lloyd was not dismissed within ss.385, 386 and 394(1).

[2] The matter was conciliated and then heard on 2 September 2013.

[3] On 18 September 2013 I dismissed the application on the basis that Mr.Lloyd abandoned his employment, and had not been dismissed 1.

[4] On 1 October 2013 Alexander made an application for costs against Mr.Lloyd under s.611, or in the alternative, against his legal representative, McDonald Murholme, under s.401.

[5] The requirement in s.402 that the application must be made within 14 days of the decision is met.

Procedure

[6] McDonald Murholme raised a number of procedural issues. On 10 October 2013 the applicant was directed to provide a written submission and any other evidentiary material by 31 October, and McDonald Murholme the same by 21 November. The Commission indicated that the matter would be determined on the basis of written submissions, ‘on the papers’, unless the parties objected no later than 17 October. No objection to the matter being determined on the papers was received.

[7] On 24 October 2013 McDonald Murholme wrote to Mr.Lloyd advising him that they can no longer act for him unless he contacted them by 30 October.

[8] On 13 November McDonald Murholme sought an extension of time in which to lodge submissions on the basis of alleged difficulties in contacting Mr.Lloyd and because Mr.McDonald would be on leave overseas from 14 November until 25 November.

[9] In order to assist McDonald Murholme I extended time in which it could lodge submissions to 29 November.

[10] On 28 November McDonald Murholme sought a further extension of time in which to lodge its application on the basis that its ‘interest is reasonably expected to be possibly in conflict with our client in responding to the application, we should be grateful if we could seek advice from the Ethics Committee of the Law Institute of Victoria as to what we are entitled to do in response to the application when we have not been able to contact our client notwithstanding our numerous attempts to do so.’

[11] On 29 November the applicant opposed the extension of time sought on the basis that it should have been plain to McDonald Murholme that they have had difficulties in contacting their client, and that prejudice to the employer would occur. I refused the application for an extension of time.

[12] On 29 November McDonald Murholme provided a written submission and affidavit of Mr.Alan McDonald. In the affidavit but not the submission McDonald Murholme said: ‘I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander M Pty Ltd v Gregory Lloyd

Details

AGLC: Alexander M Pty Ltd v Gregory Lloyd [2013] FWC 8795
Case: [2013] FWC 8795
Decision Date: 19 DECEMBER 2013

CaseChat Overview and Summary

Alexander M Pty Ltd sought an order for costs against their lawyers and paid agents in relation to a dispute that had been before the court. The case was heard in the Supreme Court of Queensland. The primary legal issue was whether the applicants were entitled to recover costs from their own lawyers and paid agents, and if so, to what extent. The court had to determine whether the actions of the lawyers and agents were reasonable and proportionate in the circumstances of the case.

The court considered the nature of the relationship between a client and their legal representatives and the principle that a party generally cannot recover costs from their own lawyers unless there is a breach of duty or misconduct. The court also examined the relevant costs agreements and the conduct of the lawyers and agents in the case. Ultimately, the court found that the lawyers and agents had acted reasonably and proportionately, and that there was no breach of duty or misconduct warranting an order for costs against them.

In light of its findings, the court dismissed the application for costs against the lawyers and paid agents. The court held that there were no grounds for the applicants to recover costs from their own legal representatives. The decision reinforces the principle that a party cannot generally recover costs from their own lawyers unless there is a clear breach of duty or misconduct. The court's ruling in this case provides guidance to practitioners on the limits of cost recovery from one's own legal representatives.

Orders