DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2014/12879)

COMMISSIONER SIMPSON

BRISBANE, 11 SEPTEMBER 2015

Application for costs under s.400A and s.611 - Application dismissed.

[1] On 25 June 2015 I issued a decision [2015] FWC 552 and order dismissing an application under s.394 of the Fair Work Act 2009 (‘the Act’). In accordance with a separate Order, the Decision and Order were not published on the Fair Work Commission website. The Respondent in the Unfair Dismissal matter then made application for costs under ss.400A and 611 of the Act. The matter was listed for directions on 23 July 2015 and by agreement the matter was to be determined on the papers. Both parties filed written submissions as directed.

[2] Both parties were self-represented in both the unfair dismissal matter, and this costs application. Considerations under s.401 of the Act do not arise. Both parties agreed to the unfair dismissal matter proceeding as a determinative conference rather than a public hearing.

[3] In these matters costs do not follow the result, but may only be ordered in a limited range of circumstances set out in s.400A, s.611 of the Act.

[4] To avoid confusion, within the body of this decision any references to the Applicant are a reference to the Respondent in the unfair dismissal proceedings, and any references to the Respondent, are a reference to the Applicant in the unfair dismissal proceedings.

Section 611 provides:

“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.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[5] I have taken account all of the submissions and material put forward.

Section 611(2)(a)

[6] The approach generally taken by members of the Tribunal as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust. 1 In that decision His Honour said the following:

“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore…

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 Applicant v Respondent

Details

AGLC: Applicant v Respondent [2015] FWC 3309
Case: [2015] FWC 3309
Decision Date: 11 SEPTEMBER 2015

CaseChat Overview and Summary

The matter before the court was an application by the applicant against the respondent for costs under sections 400A and 611 of the relevant legislation. The applicant sought costs for the proceedings that had been brought before the court. The court was required to determine whether the applicant was entitled to the costs sought and, if so, the amount of those costs.

The court examined the relevant provisions of the legislation and considered the principles of costs in equity. The court also took into account the conduct of the parties and the outcome of the proceedings. The court found that the applicant was not entitled to the costs sought, as the proceedings were not successful and the applicant had not met the criteria for an award of costs. The court further found that the conduct of the applicant did not warrant an award of costs against the respondent.

The application for costs was dismissed. The court made no order as to costs.

Orders