Classic Ceramics (Importers) Pty Ltd v Mary Heywood, Thornton Tucker
[2023] FWC 1511
•27 JUNE 2023
| [2023] FWC 1511 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.400A, 611 - Application for a costs order against a party
Classic Ceramics (Importers) Pty Ltd
v
Mary Heywood, Thornton Tucker
(C2022/6540)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 27 JUNE 2023 |
Application for costs – costs incurred because of unreasonable acts and omission – costs awarded.
Mary Heywood claimed that she had been unfairly dismissed by Classic Ceramics (Importers) Pty Ltd (Classic Ceramics) and she applied for a remedy under s 394 of the Fair Work Act 2009 (Act). On 9 September 2022, Ms Heywood filed a Notice of Discontinuance. A hearing of the application was scheduled for 12 September 2022. Ms Heywood had engaged Greg Raines of Thornton Tucker to represent her in connection with her application and Classic Ceramics had engaged Russell Kennedy to act for it. Following the discontinuance of the application, Classic Ceramics applied for costs against Ms Heywood on two bases: First, that she caused Classic Ceramics to incur costs because of unreasonable acts or omissions in connection with the conduct or continuation of the proceeding (s 400A(a)). Second, that the proceeding was instituted by her vexatiously and/or without reasonable cause (s 611(2)(a)) and that it should have been reasonably apparent to Ms Heywood that the proceedings had no reasonable prospects of success (s 611(2)(b)).
Costs were also sought against Thornton Tucker under s 401 of the Act on the basis Thornton Tucker caused Classic Ceramics to incur costs because it encouraged Ms Heywood to start and/or continue the proceeding and it should have been reasonably apparent that the proceeding had no reasonable prospect of success (s 401(1A)(a)).
During the costs hearing Counsel for Classic Ceramics outlined a significant narrowing of the scope of the application in several respects. First, the application for costs against Thornton Tucker was no longer pressed.[1] Second, the application under s 611(2)(b) of the Act against Ms Heywood was limited to a contention that her unfair dismissal application had no reasonable prospects of success because she had covertly recorded various meetings and conversations with her employer which, though only discovered after the dismissal, amounted to serious misconduct and provided a valid reason for dismissal.[2] Third, so much of the application as contended the circumstances under s 611(2)(a) of the Act, was not pressed.[3] Fourth, the application under s 400A of the Act against Ms Heywood was founded on the following acts or omissions said to be unreasonable and causing Classic Ceramics to incur costs:
Ms Heywood refusing to accept a settlement offer made on 1 September 2022 prior to Classic Ceramics filing its material;
Ms Heywood failing to comply with Commission directions necessitating the matter being listed for a mention and a case management conference.[4]
The relevant factual circumstances underpinning each of these grounds are as follows.
First, as to the settlement offer communicated by correspondence from Russell Kennedy attached to an email to Ms Heywood on 1 September 2022. Amongst other matters, the correspondence proposed a settlement offer, which was to remain open for acceptance until midday 5 September 2022 and in summary contained the following:
recharacterising the termination of Ms Heywood’s employment as a resignation;
payment to Ms Heywood of an amount equal to four weeks’ salary less tax;
Ms Heywood to discontinue the proceeding;
each party bear their own costs of the proceeding;
mutual confidentiality obligations;
a full release provided by Ms Heywood for the benefit of Classic Ceramics and its directors, officers, agents and employees in connection with claims related to Ms Heywood’s employment and the cessation thereof.[5]
The correspondence was sent directly to Ms Heywood, because by this stage Mr Raines had apparently ceased to act for Ms Heywood, a point Ms Heywood acknowledged in her reply email to Russell Kennedy on 4 September 2022. In that email Ms Heywood complains that she has no idea what the letter dated 1 September 2022 means and that as she is not legally represented, the letter and the legal references in it were beyond her. However, Ms Heywood wrote that she understood that Classic Ceramics were offering to discuss a resolution of her application privately and that she was open to this idea. Ms Heywood requested “a private-confidential phone meeting” on 5 or 6 September 2022.
Ashleigh Warren, a solicitor employed by Russell Kennedy, gave evidence that the solicitors for Classic Ceramics did not respond to Ms Heywood’s request set out in that email.[6] She explained that this was because Ms Heywood was asking for something other than that which was being offered – she was asking to negotiate.[7]
The explanation for the failure to respond is not particularly persuasive. By this time Ms Heywood was not represented and Ms Warren acknowledged that Ms Heywood’s response was indicative of confusion about the offer.[8] A response was warranted if for no other purpose than to disabuse Ms Heywood of the notion that in the 1 September 2022 correspondence Classic Ceramics was “offering to discuss a resolution” of Ms Heywood’s application.
A more prudent approach would have been to respond to Ms Heywood’s email by accepting the invitation for a telephone discussion or by rejecting it and confirming the original offer and the time for acceptance (or perhaps extending the time by a few hours). This was particularly so since the 4 September email gave every indication that Ms Heywood was keen to settle. Specifically, in raising the prospect of a telephone meeting, Ms Heywood said that she was “open to this idea”.[9] It appears that Ms Heywood wanted to negotiate and settle, and she gave evidence that she had intended to put a counteroffer of 5 weeks’ salary, and if that were not accepted, she would accept the 4 weeks’ salary on offer.[10] But it must be accepted that the settlement offer made in the 1 September 2022 correspondence did not invite further discussion. The offer was either to be accepted, rejected, or would lapse after the date and time indicated.
Second, as to Ms Heywood’s failure to comply with Commission directions. Directions were issued on 16 June 2002, inter alia, requiring Ms Heywood to file and serve an outline of submissions, any statements of evidence and documents on which she intended to rely by 7 July 2022. Ms Heywood did not comply and by email dated 25 July 2022, Ms Heywood’s representative contended that neither he nor his client received the directions. I need not deal with the veracity of the claim, though the directions were sent by email to the email addresses notified in the application and to which subsequent correspondence was apparently successfully sent and received.
A case management conference was held on 1 August 2022 at which the previous directions were vacated, and new directions inter alia requiring Ms Heywood to file and serve her materials by 12 August 2022 were made, with a hearing fixed for 12 September 2022. Ms Heywood did not comply and after various communications with my chambers Ms Heywood filed submissions on 19 August 2022 which she contended had been filed previously, although no evidence has been provided to satisfy me that that contention is correct. Classic Ceramics objected to the late filing and a further case management conference was listed for 26 August 2022. At the conference, I varied the directions so that the hearing date could be preserved, and, in the result, Classic Ceramics could file its materials by 7 September 2022 (originally 28 August 2022) with no requirement for Ms Heywood to file a reply to Classic Ceramics’ materials, and any reply could be undertaken in the running of the matter at the hearing.
A further case management conference was held on 30 August 2022 to deal with issues raised in an email from Ms Heywood earlier that day associated with Ms Heywood’s representation, her late objection to Classic Ceramics being given permission to be represented at the hearing by a lawyer, her complaint that she was not given an opportunity in the directions to file a written reply, and her capacity to obtain representation after Mr Raines said he no longer acted. In substance she sought an adjournment of the scheduled hearing and a variation to the directions.
It is to be noted that the time for providing objections to representation in accordance with the directions had passed and the reason for the absence from the amended directions of any requirement that Ms Heywood file a written reply was explained at the 26 August 2022 case management conference (the need to preserve a hearing date which had already been delayed by her earlier noncompliance with directions). In any event Ms Heywood was not precluded from responding in writing, she was merely not required to do so, and she would in any event have the opportunity to reply at the hearing. Indeed, such prejudice as might have been endured as a result of no written reply, would have been wholly borne by Classic Ceramics because it would hear the reply for the first time at the hearing instead of in advance of the hearing.
Third, Ms Heywood covertly recorded various meetings and conversations with her employer. In correspondence attached to an email to my chambers dated 7 September 2022,[11] Ms Heywood advises inter alia, that:
“I have recorded my phone conversation with Sam Giunta. I made this recording in compliance with the Victorian surveillance act (sic) and I have double checked this with authorities. Sam Guinta (sic) is lying in his unsigned witness statement. He talks about me ending my employment and that I should just leave because the other staff do not like working with me. It is clear that the entire termination is unfair.”[12]
Ms Heywood also says:
“I also have recordings from my meetings with HR which are very different to what witness statements are now stating. In particular the suggestion that I was asked to reply to the warning. I was completely excluded from the investigation into the warning. I was simply given a warning. I wanted more information and I wanted HR to understand that issues had been resolved and were not as bad as they might have concluded.”[13]
Ms Heywood gave evidence in the costs hearing. During cross-examination Ms Heywood confirmed that she had recorded a conversation with Mr Giunta while she was employed with Classic Ceramics, and initially that she did not tell Mr Giunta and later that she could not recall whether she told Mr Giunta that she was recording their conversation.[14] But Ms Heywood accepted that there is nothing in the recording which suggests that she informed Mr Giunta that she was recording or that she sought his consent to record their conversation.[15]
During cross-examination Ms Heywood also gave evidence about her reasons for recording her conversation with Mr Giunta, and the circumstances in which she came to record the conversation as follows:
PN271 Why did you record the conversation with Mr Giunta? --- Because I wanted to understand what was happening whilst I was being targeted and attacked. I wanted to understand why - what he was saying to me, because he does speak and goes off in tangents, and I wanted to reason with him so that I could recollect what he had to say and where my point of view in relation to this possible termination, in which direction it was going. I know Sam is a very reasonable person sometimes. I thought that if he heard my view he would be able to assist, and I was extremely stressed, anxious and depressed at the time, and, you know, I needed to have that to prove to myself that what I was listening to was true and correct. And I was - I knew I had the right to record, and, you know, I was encouraged to do that.
PN272 You were encouraged to do that. By who were you encouraged to do that? --- I was told by Greg that I could record the conversation. He is a licenced investigator with Victoria Police. I was under so much stress and anxiety I needed to remember what was being said to me, what was being alleged, and so I made the recording to help me.
PN273 So when you say that you knew you were able to what are you referring to there; you were able to because Greg told you or is there some other reason that you thought you were able, allowed to record this conversation? --- Could you ask that question again, that’s very confusing.
PN274 When you say that you knew you were allowed - I think the words you used you knew you were able to record the conversation - what do you mean by that, you knew you were able to. Able to according to who, according to what? --- According to the Surveillance Act.
PN275 Right. So you had looked at the Surveillance Devices Act and you took from that that you were able to record this conversation? --- I was able to record any conversation for my own personal use, and that’s why I recorded it, for my own personal use, because I was ill and I needed to remember what was being said. It was my own personal use. I knew I couldn’t show it to anyone, it was for my own personal use.
PN276 You knew you couldn’t show it to anyone? --- I knew - I knew I couldn’t show it to anyone, it was for myself.[16]
As to the other recordings Ms Heywood confirmed during cross-examination that she made other recordings of meetings she had with members of the Classic Ceramics HR team and others in management during her employment, that she did not remember whether she sought permission to record, that she had recently listened to the recordings and that the recordings do not contain any indication that she sought permission to record or that she advised the participants that she was recording their conversation.[17]
Ms Heywood also said during cross-examination that she consulted the Surveillance Devices Act because she wanted “to do what’s right and not wrong, and [she] knew that [she] was in [her] right to make a recording for [her] own personal use”.[18] She said that it never entered her mind to ask for permission to record or to inform other participants that she was or would be recording.[19] This evidence is obviously inconsistent with her earlier evidence that she could not remember whether she asked permission to record or announced that she was recording. That doing so never entered her mind must mean that she did not do so. And to the extent that it is necessary I am satisfied that Ms Heywood did not seek permission to record, nor inform other participants in the conversations recorded that Ms Heywood was recording, and that these recordings were undertaken during her employment.
Having regard to the matters discussed above it is now necessary to consider whether Ms Heywood should be ordered to pay costs incurred by Classic Ceramics under either or both heads of power with which the application for costs engages.
Beginning with the s 611(2)(b) ground, that Ms Heywood’s unfair dismissal application had no reasonable prospects of success because she had covertly recorded various meetings and conversations with her employer, which though only discovered after the dismissal amounted to serious misconduct and provided a valid reason for dismissal.
While I accept that surreptitiously recording workplace conversations with management may provide a valid reason for dismissal, I do not accept that such conduct would amount to serious misconduct in every case. There would generally need to be some additional element such as a direction to an employee not to record without consent, a policy governing recording at work, some contractual requirement that no consensual recordings not be made or an inquiry of the employer whether the employee is recording, an indication that no recording is occurring, but the recording proceeds, nevertheless.
It is accepted that surreptitiously recording workplace conversations is usually inappropriate because it is unfair to other unsuspecting participants in such conversations who might, armed with the knowledge that the conversation is being recorded, otherwise have adopted a more circumspect language and tone and perhaps also not opined on particular matters. I also accept, as Colman DP observed in Tawanda Gadzikwa v Australian Government Department of Human Services[20] that “once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment”.[21] Such conduct may also be destructive of trust and confidence, the absence of which from an employment relationship will usually sound the death knell of that relationship.
In some cases, such conduct may be contrary to an employee’s contractual duty of good faith[22] which would be a valid reason for dismissal, but this will not be so in every case. There may be persuasive reasons why a secret recording was justified, or the recording may be necessary to protect a particularly important interest.
Here the recordings appear to have been made in the context of disciplinary engagements and the ending of the employment relationship. The recordings are said to contradict the version of events that Classic Ceramics proposed to advance at the hearing in opposition to Ms Heywood’s claim for a remedy. I have not heard the recordings, and they are not in evidence. Nor has the material filed by Classic Ceramics been admitted into evidence much less has it been tested through cross-examination. Without that it is difficult to conclude as Classic Ceramics sought that I do, that the act of surreptitiously recording workplace conversations provided a valid reason. If, for example, the recordings vindicated Ms Heywood’s claim and contradicted the evidence that Classic Ceramics proposed to lead, the act of recording could hardly provide for a valid reason for termination where the evidence to be led by Classic Ceramics about the circumstances of the dismissal was less than candid, possibly made up to suit a narrative and contradicted by the recordings.
In these circumstances it cannot be said that, by reason of Ms Heywood having surreptitiously recorded workplace conversations, her unfair dismissal remedy application had no reasonable prospects of success. So much of Classic Ceramics’ costs application as is grounded in s 611(2)(b) must be dismissed.
Turning next to the refusal to accept a settlement offer made on 1 September 2022 ground. As the factual dissertation earlier reveals, Ms Heywood wanted to discuss the offer made, in circumstances where she said that she was no longer represented and was confused. She plainly misunderstood that which the settlement offer required. Ms Heywood’s communication went unanswered. The offer lapsed. Ms Heywood did not reject the offer. It lapsed in circumstances where she had sought a telephone discussion. The whole of the circumstances must be considered in assessing whether a particular act or omission was unreasonable. Here the omission, which involved a failure to accept an offer within the time dictated by the offer occurred in the following circumstances:
· Ms Heywood was not represented at the time and solicitors for Classic Ceramics knew this when the offer was communicated;
· The offer was communicated on Thursday evening by email, leaving one and a half business days before the period for acceptance would lapse;
· The letter communicating the offer was 8 pages in length and surrounded by an assessment of the strength of Ms Heywood’s case, some indication of the case which Classic Ceramics proposed to advance, a summary of various provisions of the Act and a less than veiled indication that Classic Ceramics would likely pursue a costs order in the event Ms Heywood was unsuccessful or was successful but obtained compensation in the amount no greater than the settlement sum on offer;
· Ms Heywood told Classic Ceramics’ she did not understand much of the letter in which the offer was contained;
· Ms Heywood asked (before the time for acceptance had lapsed) for a telephone conference to discuss the offer;
· Her request went unanswered.
In these circumstances, that Ms Heywood allowed the offer to lapse was not unreasonable. The absence of follow up by the solicitors for Classic Ceramics to the email of 4 September 2022 from Ms Heywood cannot be ignored. It was not the cause of the offer lapsing, but it likely contributed to that eventuality. That Ms Heywood would have sought a higher settlement sum in such discussions is beside the point. The telephone discussion was an opportunity for the solicitors for Classic Ceramics to disabuse Ms Heywood of any hope that a higher sum would be paid and that the only sum on offer was that in the letter of 1 September 2022. Had that occurred and the offer then rejected or allowed to lapse, the assessment of whether that act or omission in those circumstances was unreasonable, would likely be different. This head of power (s 400A(1)) is not engaged in the circumstances and so much of the costs application as relies on the circumstances of the settlement offer is dismissed.
As to the contended unreasonable acts or omissions associated with the directions made by me, I accept that Ms Heywood’s failure to comply was unreasonable for several reasons.
Ms Heywood did not comply with the direction I made on 16 June 2002, requiring her to file and serve materials on which she intended to rely by 7 July 2022. She (and her representative) provided unpersuasive (but ultimately not material to this application) reasons for the noncompliance. The prospect of one person not receiving an email attaching the directions at their nominated email address is possible. The prospect of two people not receiving same, though it cannot be ruled out, seems farfetched.
In any event a case management conference was held on 1 August 2022 at which the previous directions were vacated, and new directions made. Ms Heywood was in attendance during the conference and heard or should have heard the directions I made when I announced them. She was required to file and serve her materials by no later than 5:00pm on 12 August 2022. She did not comply and after various communications with my chambers Ms Heywood filed submissions on 19 August 2022 which she contended had been filed previously by Mr Raines. The document filed was in PDF format. No evidence has been provided to satisfy me that that contention is correct. I asked Mr Haines at the time to produce the word version of the submissions, because the properties function of a word document would disclose when the document was created. I also asked for the original email to which the submission said to have been filed was attached. I note the email he forwarded to Ms Heywood indicating that the submission had been filed, did not indicate that the material had been served. No separate email to the solicitors for Classic Ceramics was produced as evidence of earlier service of the submission. Service on the other party is in many respects more important than filing in the Commission, as service of material is often, and in this case was, to be followed by further action required of the party being served.
Instead of complying with my request, Mr Raines indicated that he was ceasing to act. A word version was not produced.[23] A word version that was sent indicated that the document was created on 25 August 2022 and so could not have been the word version from which the PDF version was created and filed on 19 August 2022. No evidence of any email sent earlier than 19 August 2022 attaching those submissions sent to the Commission and/or to Classic Ceramics has been produced. Ms Heywood also failed to serve the 19 August 2022 submission on Classic Ceramics until after my associate forwarded Ms Heywood’s email attaching the submission to Classic Ceramics. Ms Heywood’s failure to comply with the directions was, in the circumstances, an unreasonable omission. The explanation offered by her for the failure to comply with the directions is not accepted and was not supported by any probative evidence. No other explanation was offered. And it was not contended that the document purportedly filed earlier than 19 August 2022, was also served earlier. This was the second occasion on which Ms Heywood failed to comply. As noted earlier, the explanation offered on the first occasion was also not persuasive.
Classic Ceramics objected to the late filing, as it was entitled to do, and as it was apparent that the timetable for further filing and maintenance of the hearing date would not likely be able to be maintained. A further mention of the matter was scheduled for 26 August 2022, to deal with Classic Ceramic’s objection, to consider the veracity of the claimed reason for late filing and service, and to make such amendments to the timetable as was necessary in the circumstances. The objection to the late filing was dismissed and given the history of the matter I allowed Classic Ceramics more time to file its materials and dispensed with the requirement for a written response from Ms Heywood, thus ensuring that the scheduled hearing date need not be vacated. I consider that Ms Heywood’s unreasonable omission necessitated a further case management conference and so caused the costs that Classic Ceramics incurred in the result.
As to the case management conference on 30 August 2022, I consider that the costs incurred were not wholly caused by an unreasonable act or omission on Ms Heywood’s part. In substance the case management conference was called to deal with that which amounted to an adjournment request. That request was made in circumstances where Mr Raines had ceased to act, and Ms Heywood, who had hitherto been reliant on Mr Raines, was now left to her own devices on short notice. Similarly, the opposition to representation of Classic Ceramics was raised because circumstances had changed. Previously both parties were represented but that was no longer the case. Neither the request for an adjournment nor the request to reconsider the question of the grant of permission to Classic Ceramics to be represented by a lawyer (a point which then had yet to be determined) in light of the changes in circumstances was unreasonable.
I also do not consider Ms Heywood’s request for a reply to be unreasonable. Allowance needs to be made for the fact that Ms Heywood was at this point self-represented. That she misunderstood why no requirement for a reply was set out in the directions and wrongly believed that she would be denied a right of reply, does not render the request, unreasonable. That leaves only the objection to the late filing of Ms Heywood’s submission. I have already concluded that the late filing (or more properly a failure to comply with my directions) was an unreasonable omission. For the reasons already given, that omission caused Classic Ceramics to incur costs and in my view those costs should be borne by Ms Heywood, including such costs associated with the late filing.
In the circumstances I consider that some of the costs incurred by Classic Ceramics by reason of the unreasonable acts and omission discussed above should be borne by Ms Heywood.
Classic Ceramics identified the following costs it says were incurred because of the unreasonable acts and omission cited above.
| 13. | 15/08/22 | Drafting Notice of representative commencing to act; draft email to G Raines | $115.00 |
| 14. | 16/08/22 | Drafting emails to Commission; emails to G Raines; drafting and filing Form F53. | $240 |
| 15. | 16/08/22 | Telephone attendance on client | $60 |
| 16. | 16/08/22 | Telephone attendance on Mary Heywood representative - on various numbers (no response); attendances on Ashleigh Warren regarding correspondence to be sent to Ms Heyward’s representative and the Fair Work Commission; settle correspondence | $60 |
| 17. | 17/08/22 | Email to client | $60 |
| 18. | 17/08/22 | Reviewing and consider basis for applying to dismiss application; Internal Attendance re same | $204 |
| 19. | 17/08/22 | Reviewing applicant’s affidavit material | $127.50 |
| 20. | 17/08/22 | Perusing email from Commission | $85.00 |
| 21. | 19/08/22 | Telephone in client | $60 |
| 22. | 19/08/22 | Perusing email from M Heywood and Commission | $127.50 |
| 23. | 19/08/22 | Drafting emails to G Raines and considering application to dismiss | $60 |
| 24. | 22/08/22 | Reading M Heywood submissions; drafting response for Commission | $425.00 |
| 25. | 22/08/22 | Telephone in client | $60 |
| 26. | 22/08/22 | Email from DP Gostencnik (Commission)’s chambers with attached correspondence from the Applicant; consider and attendances re same | $204.00 |
| 27. | 22/08/22 | Reviewing/considering draft response to Commission (amend and prepare notes to be raised with Commission re applicant’s non compliance) | $476.00 |
| 28. | 23/08/22 | Email to Associate; email to client | $120 |
| 29. | 23/08/22 | Internal Attendance re finalising email to send to Commission | $60 |
| 30. | 24/08/22 | Perusing emails from Commission | $42.50 |
| 31. | 24/08/22 | Email from FWC with attached notice of listing | $68.00 |
| 32. | 25/08/22 | Email to Associate; perusing emails from Associate | $60 |
| 33. | 25/08/22 | Telephone attendance on client - left message | $60 |
| 34. | 25/08/22 | Internal Attendance regarding material to be prepared for mention; communication to be sent to Commission re documents provided by Applicant | $60 |
| 35. | 25/08/22 | Attendance on phone calls with client | $60 |
| 36. | 25/08/22 | Telephone attendance on client- left message to call back | $60 |
| 37. | 25/08/22 | Telephone attendance on client | $60 |
| 38. | 25/08/22 | Attendance on phone call with client | $60 |
| 39. | 25/08/22 | File review (in preparation for mention) | $476.00 |
| 40. | 26/08/22 | Attendance on telephone call with client | $60 |
| 41. | 26/08/22 | Preparing for mention | $382.50 |
| 42. | 26/08/22 | File review - continue file review in preparation for attendance at Commission (mention) | $952.00 |
| 43. | 26/08/22 | Attending mention | $544.00 |
| 44. | 26/08/22 | Telephone attendance on client’s office- left message to call back | $60 |
| 45. | 26/08/22 | Preparing for and attendance on mention | $850.00 |
…
| 34. | 25/08/22 | Internal Attendance regarding material to be prepared for mention; communication to be sent to Commission re documents provided by Applicant | $60 |
| 35. | 25/08/22 | Attendance on phone calls with client | $60 |
| 36. | 25/08/22 | Telephone attendance on client- left message to call back | $60 |
| 37. | 25/08/22 | Telephone attendance on client | $60 |
| 38. | 25/08/22 | Attendance on phone call with client | $60 |
| 39. | 25/08/22 | File review (in preparation for mention) | $476.00 |
| 40. | 26/08/22 | Attendance on telephone call with client | $60 |
| 41. | 26/08/22 | Preparing for mention | $382.50 |
| 42. | 26/08/22 | File review - continue file review in preparation for attendance at Commission (mention) | $952.00 |
| 43. | 26/08/22 | Attending mention | $544.00 |
| 44. | 26/08/22 | Telephone attendance on client’s office- left message to call back | $60 |
| 45. | 26/08/22 | Preparing for and attendance on mention | $850.00 |
…
| 53. | 30/08/22 | Telephone attendance on client | $60 |
| 54. | 30/08/22 | Appearing at Fair Work Commission Case Conference | $272.00 |
| 55. | 30/08/22 | Appearing and preparing for Fair Work Commission Case Conference | $272.00 |
| 56. | 30/08/22 | Telephone attendance on client | $60 |
| 57. | 30/08/22 | Attendance on case conference | $127.50 |
| 58. | 30/08/22 | Attendance on phone call with client | $60 |
Ms Heywood made no submission about the amounts or items identified above. For the reasons given at [33]-[34] I do not consider the conduct of Ms Heywood which necessitated the 30 August 2023 case management conference was unreasonable in the circumstances and so the costs sought in items 53 to 58 will not be allowed.
As to the remainder of the costs sought, I have determined not to allow the following items:
Items 13-14 as these appear to be related to filing of notices of representation, a step that was required to be taken and not connected with any act or omission by Ms Heywood in the conduct of the matter;
Part of item 24 - “reading M Heywood submissions”, as late filing was ultimately permitted and reading the submissions was necessary for the conduct of the matter overall. The amount claimed is reduced to $150.00;
Part of item 28 – “email to client”, as the client could have simply been copied into the email to my associate. A separate email incurring another cost item was unnecessary. The amount claimed is reduced to $60;
Items 33, 36 and 44 involved no more than an unanswered call to the client and a message to call back which is not a justifiable cost that ought to be borne by Ms Heywood despite her unreasonable conduct;
Items 41 and 45 appear to be costs associated with a second solicitor preparing for and attending a mention for which a first solicitor also prepared and attended, which in the circumstances is not a cost that ought reasonably to be borne by Ms Heywood despite her unreasonable conduct.
I will allow the remainder of the cost items sought. In the result I will make an order that Ms Heywood pay some of Classic Ceramic’s legal costs, - a sum of $4,296.50. I will also order that the costs be payable in 3 monthly instalments. The balance of the application for costs is dismissed.
Order
I order:
Pursuant to s 400A of the Fair Work Act 2009 Ms Heywood must pay a portion of the legal costs incurred by Classic Ceramics (Importers) Pty Ltd in the amount of $4296.50, in instalments as follows:
a.On or before 31 July 2023 the sum of $1432.20;
b.On or before 31 August 2023 the sum of $1432.20;
c.On or before 2 October 2023 the sum of $1432.10.
The application for costs is otherwise dismissed.
DEPUTY PRESIDENT
Appearances:
Mr G Raines for Ms Mary Heywood
Ms C Pase for Classic Ceramics (Importers) Pty Ltd
Hearing details:
28 February 2023
Melbourne
Final written submissions:
Ms Mary Heywood: 10 November 2022
Classic Ceramics (Importers) Pty Ltd: 21 November 2022
[1] Transcript PN16
[2] Ibid PN17-PN21
[3] Ibid PN512
[4] Ibid PN23-PN28
[5] Exhibit 1 at [22]; Attachment AW-7
[6] Transcript PN65
[7] Ibid PN69
[8] Ibid PN70
[9] Exhibit 1; Attachment AW-8
[10] Exhibit 2, sixth paragraph
[11] Exhibit 1; Attachment AW-10
[12] Ibid
[13] Ibid
[14] Transcript PN262-PN270
[15] Ibid PN278-PN283
[16] Transcript PN271-PN276
[17] Ibid PN284-PN294
[18] Ibid PN305
[19] Ibid PN308-PN310
[20] [2018] FWC 4878
[21] Ibid at [83]
[22] See for example Roman v Mercy Hospitals Victoria Ltd[2022] FWC 711 at [41]
[23] See also Transcript PN471-PN486
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