Courtney Singh v Integrity Care & Support Pty Ltd

[2021] FWC 5909

[2021] FWC 5909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Courtney Singh
v
Integrity Care & Support Pty Ltd
(U2020/13201)

DEPUTY PRESIDENT LAKE BRISBANE, 14 SEPTEMBER 2021

Costs application – where the applicant was unsuccessful in unfair dismissal application – costs awarded

[1] This decision concerns an application made by Integrity Care & Support Pty Ltd (Integrity Care) for a costs order against Ms Courtney Singh pursuant to s.400A of the Fair Work Act 2009 (the Act).

[2] By way of background, Ms Singh brought an application for an unfair dismissal remedy pursuant to s.394 of the Act against Integrity Care. In a decision dated 4 February 2021, I concluded that Ms Singh was not unfairly dismissed. Accordingly, I ordered that her application be dismissed.

[3] Following that decision, Integrity Care made an application for costs. That application fell through the systems usually in place in my Chambers to ensure that matters are dealt with in an efficient manner. It was brought to my attention on 6 September 2021 that a decision was outstanding in respect of the application for costs.

[4] On 6 September 2021, my Associate wrote to Ms Singh, copying Integrity Care, that the application had been made and allowed her until 4pm on 8 September 2021 to make any submissions she wished to in response. She called my Chambers on or around 7 September 2021 because she was confused by the email. I understand that my Associate explained to her that the Respondent had sought a costs order against her and that she had until 4pm on 8 September 2021 to respond to their application. Ms Singh indicated that she would talk to a friend about it. No further communication has been received from Ms Singh.

Integrity Care’s submissions

[5] The Respondent submits they clearly raised from the outset that they had identified several lawful and reasonable jurisdictional objections with the Applicant’s application, was always of the view that the application was largely without merit and, further, that it was reasonably apparent that the Applicant’s argument had no reasonable prospects of success.

[6] The Respondent acknowledges that the Fair Work Commission is usually a place where each party shoulders the burden of their own costs to present or defend a matter. However, in this instance, the Respondent believes that the Applicant’s application was particularly frivolous and vexatious in nature. They say this belief was reflected in my decision of 4 February 2021, in which I stated:

“I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am satisfied that sufficient time and warning was given to comply and that the failure to comply is both disrespectful and unconstructive. The Applicant clearly has no intention of legitimately pursuing her claim. She has attempted to keep the matter alive by exerting less than the bare minimum effort; she failed to attend the hearing, despite indicating an intention to do so, and failed to provide any adequate reasons, beyond a single line response.” 1

[7] On that basis, I dismissed the application pursuant to s.587 of the Act.

[8] The Respondent advises that her representative was required to bill her for perusing all correspondence in relation to the matter, providing appropriate advice, assisting with the preparation and drafting the Form F3 response and material in support of the jurisdictional objection documentation. Additionally, the Respondent’s representative had allocated an appropriate amount of time for the jurisdictional objections hearing, which ended up being a considerable waste of time and financial resources to the Respondent and her Representative due to the hearing not proceeding because the Applicant failed to appear.

[9] The Representative has advised that the billable amount for this work exceeds the standard threshold provided for within s.102 of the Fair Work Commission’s Schedule of Costs (in the absence of Fair Work applying discretion to increase this figure), however the Respondent would at least like the Applicant to be responsible for the apportionment of the maximum amount specified within s.102 of Schedule 3.1 of Schedule of Costs within the Fair Work Regulations 2009 (before any FWC discretion need be applied), to assist with the offsetting of her costs in defending this matter, in light of the Applicant’s ongoing refusal to approach the Unfair Dismissal process in good faith after lodging her application. Section 102 of Schedule 3.1 of Schedule of Costs within the Fair Work Regulations 2009 allows for up to a maximum of $210 in costs to be awarded (or higher at Fair Work’s Discretion) for the instructions to make or oppose any other proceeding relating to an application under ss.365 and 372 of Part 3-1, s.394 of Part 3-2 and s.773 of Part 6-4 of the Act.

[10] Accordingly, the Respondent seeks a reimbursement of at least $210 in costs (or however much the Commission deems appropriate) from the Applicant applicable to the requirement of defending herself against this frivolous and vexatious matter. The Respondent is aware from previous correspondence provided by the Applicant to the Commission with regard to this matter that the Applicant has since found other employment, and therefore remains of the view that this request for costs would mostly likely not cause the Applicant any considerable or excessive undue financial hardship and feels that the amount requested is not an unreasonable amount to request as a contribution to her expenses in this exercise in light of the circumstances.

Ms Singh’s submissions

[11] As indicated above, Ms Singh was provided with an opportunity to respond to the application seeking that costs against her, but no substantive response has been received.

Consideration

[12] The discretion to award costs under s.400A is subject to strict conditions. People who incur legal costs in a matter before the Fair Work Commission generally pay their own costs. 2 However, the Commission has the discretion to order that one party to an unfair dismissal application pay the other’s costs ifthe Commission is satisfied that the matter was commenced or responded to vexatiously or without reasonable cause, or with no reasonable prospect of success.3 The Commission may make an order for costs against a party for costs incurred by another party if the Commission is satisfied that the former caused those costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter4 and the latter makes such an application within 14 days after the Commission determines the matter or the matter is discontinued.5

[13] I am satisfied that Integrity Care incurred costs because of the making of the Ms Singh’s application. Had Ms Singh taken steps to support her claim by filing evidence, submissions or at the very least, attended the hearing, I may not have exercised my discretion to award costs. However, given Ms Singh failed provide relevant documentation to support her claim or even attend the hearing, I am satisfied that it is appropriate to make a costs order against her. Her lack of action meant that Integrity Care was forced to incur costs to defend a matter that was barely prosecuted. I am also satisfied that the Integrity Care has made an application within the prescribed time limit. The fact it was not determined until now should not preclude Integrity Care from receiving the orders for costs.

[14] Accordingly, I order that Ms Singh pay to Integrity Care costs in the order of $210.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWC 556.

 2   Fair Work Act 2009 (Cth) s.611(1).

 3   Fair Work Act 2009 (Cth) s.611(2).

 4   Fair Work Act 2009 (Cth) s.400A.

 5   Fair Work Act 2009 (Cth) s.402.