Anita Khiani v Australian Bureau of Statistics
[2010] FWA 375
•21 JANUARY 2010
[2010] FWA 375 |
|
DECISION |
Fair Work Act 2009
s.376, s.401 - Application for costs
v
Australian Bureau of Statistics
(C2009/10486)
COMMISSIONER DEEGAN | CANBERRA, 21 JANUARY 2010 |
Application for costs order.
[1] The matter arises from an application filed on 15 September 2009 under s.365 of the Fair Work Act 2009 (“the Act”) by Ms Anita Khiani (“the applicant”) in relation to termination of her employment by the Australian Bureau of Statistics (“the respondent”).
[2] On 23 November, I issued a certificate under s.369 of the Act as all attempts of settlement had been unsuccessful.
[3] On 7 December, the applicant filed on Form F6 of the Interim Fair Work Australia Rules 2009 (the Interim Rules) an application for costs against the respondent. The costs application was listed for hearing on 17 December 2009. At the hearing the applicant was self-represented and the respondent was represented, with leave, by Ms Wright of the Australian Government Solicitor (“AGS”).
[4] As already noted on 7 December the applicant filed a Form F6, the form provided by the Interim Rules for the making of an application for costs. At the time the applicant made her application for costs Form F6 was as follows:
Form F6—Application for Costs
IN FAIR WORK AUSTRALIA
FWA Matter No.:
[Insert FWA matter number appearing on main application form.]
Applicant (Employee):
[Insert name of Applicant from main application.]
Respondent (Employer):
[Insert name of Respondent from main application.]
APPLICATION FOR COSTS
Fair Work Act 2009—ss.377, 401, 611, 781
1. Party applying for a costs order:
[Insert name of party applying for costs order.]
2. Party/Person against whom a costs order is sought:
[Insert name of party/person against whom a costs order is sought.]
3. Grounds:
[Using numbered paragraphs, specify briefly the grounds on which the application for a costs order is based. Attach additional pages if necessary.]
Date: | |
Signature: | |
Name: | |
Capacity/Position: | |
[If not signed by the Applicant or the Applicant is not a natural person.] | |
Service requirements
This form must be served on the Respondent against whom the order is sought as soon as practicable after the form is lodged with FWA.
Note: Rules 9 and 10 deal with service.
[5] At the hearing of the matter the applicant advised that she was making her application pursuant to s.377 of the Act. She also confirmed that her application was made against the respondent.
[6] Ms Wright, for the respondent, argued that given that the application was made against the respondent then the appropriate provision under which it should have been made was s.611 of the Act, as s.377 related to an application for costs made against a lawyer or paid agent, not against the respondent to proceedings.
[7] The applicant maintained that her application was for costs to be awarded against the respondent and not AGS, which represented the respondent. She maintained that s.377 did not specify that an application could not be made under that section against a respondent. She argued that an application against ABS was available under s.377, given the terms of that section, and that her application did not fall within the criteria set out in s.611. It was her position that she had been put to additional cost due to the respondent’s delay in making out an offer of settlement to her. The applicant put a number of submissions in relation to settlement negotiations and her decision to consult a solicitor. In essence she argued that delays in the settlement negotiations brought about by the respondent forced her to consult a solicitor and that the respondent should pay the costs she incurred.
Legislation
The relevant sections of the Act are:
376 Costs orders against lawyers and paid agents
(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in relation to an application under section 365 or 372, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid agent caused costs to be incurred by another party to the dispute because the lawyer or paid agent encouraged the person to make the application; and
(ii) it should have been reasonably apparent that the application would have no reasonable prospect of success; or
(b) that the lawyer or paid agent caused costs to be incurred by another party to the dispute because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the dispute.
(2) FWA may make an order under this section only if the other party has applied for it under section 377.
(3) This section does not limit FWA’s power to order costs under section 611.
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 FWA finishes dealing with the dispute.
611 Costs
(1) A person must bear the person’s own costs in relation to a 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).
Consideration
[8] It is not necessary for me to deal with the arguments put by the applicant in relation to the application as, in my view, the application is misconceived and the only application for costs to be awarded against the respondent in relation to the s.365 application is an application under s.611 of the Act.
[9] The provisions of the legislation dealing with costs applications in relation to Part 3-2 of the Act are not as clear as they should be. Given the applicant’s confusion it is apparent that s.377 is capable of being interpreted, on the terms of the section alone, as providing for both the making of a costs application in relation to s.365 and s.372 applications and the relevant time limit for those applications. This is, however, not the case. An examination of the context of the provision and the relevant provisions of the Explanatory Memorandum to the Fair Work Bill 2008, makes this clear.
[10] Section 377 has the title “Applications for costs orders”. Section 378 makes it clear that orders for costs are made pursuant to s.376. Section 376 provides for costs orders to be made against lawyers and paid agents and for such orders to be made by Fair Work Australia (“FWA”) only where an application has been made under s.377. It should be noted that s.376(3) states that the provisions of s.376 do not limit the ability of FWA to order costs under s.611.
[11] Section 611 provides FWA with the general power to award costs. The note to s.611(2) reads as follows:
Note: FWA can also order costs under sections 376, 401, and 780.
There is no reference to an application for costs being made under s.377
[12] The relevant provisions of the Explanatory Memorandum 1 relating to the clauses that became ss.376 and 377 of the Act clarify the operation of those provisions. Paragraph 1499 states:
“Subclause 376(1) operates in addition to subclause 611(2). Subclause 611(2) provides FWA with a general power to make costs orders against a person in the following circumstances:
• Where a person made an application, or responded to an application, vexatiously or without reasonable cause; or
• Where a person made an application, or responded to an application, and it should have been reasonably apparent to the person that their application, or response to an application had no reasonable prospects of success.”
[13] Paragraph 1502 of the Explanatory Memorandum deals with the effect of clause 377 of the Bill (s.377 of the Act) noting that the clause “sets a time limit on applications for costs in relation to an application under subdivisions A or B of 14 days after FWA has finished with the dispute.” (my emphasis)
[14] Clearly s.377 was not intended to provide, and does not provide, an additional power for FWA to award costs in relation to applications made under s.365 (subdivision A) or s.372 (subdivision B) in addition to those powers set out in s.376 and 611. An examination of the Fair Work Regulations 2009 which provides a Schedule of Costs 2 for orders made under the various sections of the Act reinforces this conclusion.
Conclusion
[15] The applicant’s claim for costs must fail. FWA has no power to award costs against the respondent in an application made under s.365 other than those powers provided in s.376 and s.611. No power to award costs is found in s.377 of the Act. While an application for costs to be awarded under s.376 must be made in accordance with s.377 (that is, within 14 days of the dispute being finished with by FWA) an application cannot be made against the respondent under that section. Section 376 empowers FWA to make costs orders against lawyers or paid agents only.
[16] When the respondent’s representative attempted to deal with the application as though it had been made against the respondent under the provisions of s.611 the applicant made it clear that she had no wish to make an application against the respondent under s.611 as there were no grounds for an application under that section.
[17] The application for costs made under s.377 of the FWA is dismissed. An order to this effect is published separately.
[18] On 12 January 2009 FWA amended the Interim Rules. As amended Form F6 now refers to the operative sections of the Act for the purpose of that Form as being ss.376, 401, 611 and 780.
COMMISSIONER
Appearances:
Ms Anita Khiani, unrepresented.
Ms Sarah Wright, Australian Government Solicitor for the respondent.
Hearing details:
Canberra, 17 December 2009.
1 Fair Work Bill 2008, Explanatory Memorandum.
2 Fair Work Regulations 2009, Schedule 3.
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