Dalglish v MDRN Pty Ltd (No.2)
[2014] FCCA 1969
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALGLISH v MDRN PTY LTD (No.2) | [2014] FCCA 1969 |
| Catchwords: COSTS – The applicant had failed in claims at Common Law in relation to breach of contract and failed in claims under the Fair Work Act 2009 – the respondent sought costs of the failed Common Law claims – whether s.570 of the Fair Work Act 2009 limits the Court’s power with respect to the costs of claims under the Common Law. The respondent also sought costs under s.570(2)(b) of the Fair Work Act 2009 – whether the particular costs and omissions were unreasonable. |
| Legislation: Fair Work Act 2009 (Cth), s.570. The Explanatory Memorandum relating to the Fair Work Bill 2008 (Cth) |
| Dalglish v MDRN Pty Ltd [2014] FCCA 1138 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716 |
| Applicant: | SIMIENNA ESTHER DALGLISH |
| Respondent: | MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
| File Number: | BRG 264 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 10 June 2014 |
| Date of Last Submission: | 15 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Milner Lawyers |
| Counsel for the Respondent: | Mr Merrell |
| Solicitors for the Respondent: | McCarthy Durie Lawyers |
ORDERS
That the applicant pay 50% of the respondent’s costs in respect to the applicant’s Common Law claims.
That the applicant pay 50% of the respondent’s costs in respect of the applicant’s claim under the Fair Work Act 2009 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 264 of 2012
| SIMIENNA ESTHER DALGLISH |
Applicant
And
| MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2014 I delivered a judgment in the proceedings Dalglish v MDRN Pty Ltd [2014] FCCA 1138. This decision concerns the costs of those proceedings and should be read in conjunction with the reasons published on 10 June 2014.
The Material
The applicant in the substantive proceedings, Ms Simienna Esther Dalglish (“the applicant”), relied upon the following material:
a)The affidavit of Anne Milner filed 5 August 2014; and
b)The outline of submissions filed by the applicant on 5 August 2014.
The respondent in the substantive proceedings, MDRN Pty Ltd trading as McCarthy Durie Lawyers (“the respondent”), relied upon the following material:
a)The affidavit of Ian Alexander Neil filed 23 June 2014;
b)The outline of submissions filed by the respondent on 23 June 2014; and
c)The written submissions in reply filed by the applicant on 15 August 2014.
Background
The effect of the judgment on 10 June 2014 was that all of the applicant’s claims in relation to the Common Law were dismissed and the claims that she made under the Fair Work Act 2009 (Cth) were also dismissed.
The respondent seeks orders that the applicant pay 50% of the respondent’s costs of and incidental to the action in relation to the Common Law claims and the other 50% of the costs in relation the Fair Work claims under s.570(2) of the Fair Work Act 2009 (Cth).
The respondent also seeks an order that has the effect of the Court providing some sort of taxation in relation to the costs order. The respondent seeks that these costs be paid on an indemnity basis. The respondent further seeks an order that I fix the quantum of two costs orders that were interlocutory costs orders.
The application for costs made by the respondent seeks 50% of the costs for the Common Law claim under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth). It relevantly provides:
“79 Costs
(1) This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009.
Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings. See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.
(2) The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.”
The power to award costs in respect of Fair Work claims is set out in s.570 of the Fair Work Act 2009 (Cth):
“570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”
In the present case, the respondent argues that the Common Law claim should be dealt with under the Court’s power to order costs pursuant to s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) rather than s.570 of the Fair Work Act 2009 (Cth).
Section 570 of the Fair Work Act 2009 (Cth) has recently been amended. The effect of s.570 is to limit the court’s power under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) in respect of proceedings relating to matters arising under the Fair Work Act 2009 (Cth).
There are a series of sections that have been judicially considered in relation to the restriction of costs in fair work matters. The first one is s.824 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) (now repealed):
“Costs only where proceeding instituted vexatiously etc.
(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first‑mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.
(3) In subsections (1) and (2):
“costs” includes all legal and professional costs and disbursements and expenses of witnesses.”
It can be seen that s.824 of the WR Act is similar but not identical to s.570 of the Fair Work Act 2009 (Cth). It is the case that, on a number of occasions, the Federal Court has reached differing views as to the effect of s.824 of the WR Act and its predecessors in relation to proceedings involving claims under two federal statutes. This is discussed in paragraphs 11 – 13 of the decision of Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716:
“[11] The Full Court (North, Logan and Robertson JJ) made an extensive review of the decisions concerning s 824 and its predecessors. It noted (at [58], 483) that, on previous occasions this Court had reached differing views as to the effect of s 824 or its predecessors in relation to proceedings involving claims under two federal statutes. The Full Court considered (at [62], 484) that there was a strong implication in the BCII Act that, in a proceeding involving the exercise of the Court’s jurisdiction under that Act, the Court had its statutory discretion under s 43 to award costs. It held that both Acts should be construed as having a harmonious operation and concluded (at [64], 484):
Giving the provisions a harmonious operation, in our view where the matter arises under two Acts of the Parliament, s 824 of the WR Act does not apply to the entirety of the proceeding to limit the power of the Court to make a costs order.
The Full Court then ordered the respondent to pay 50% of the CFMEU’s costs of the appeal and remitted to the trial Judge the question of costs of the first instance hearing.
[12] SYC submitted that the reasoning in CFMEU (No 2) should be applied in the present case, with the effect that it should be entitled to a costs order in respect of the claims under the SD Act on which the applicant had failed.
[13] In my opinion, the decision in CFMEU (No 2) is not conclusive of the position under s 570.”
I note that s.570 of the Fair Work Act 2009 (Cth) came into operation on 1 July 2009 and originally it provided:
“570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569.”
(Emphasis added.)
In the Explanatory Memorandum relating to the Fair Work Bill 2008 (Cth), the minister said in relation to the proposed s.570:
“2228. The ability of the courts to award costs in workplace relations matters has been limited since 1904 and is part of the policy of discouraging legalism in proceedings before industrial courts. However, this clause departs from section 824 of the WR Act, in that it is limited to proceedings in which a court is exercising jurisdiction under the Bill rather than in any matter arising under the Bill. A similar change was made to clause 565 (see above).
2229. As noted above, the 'matters arising' language has been interpreted broadly. A proceeding not brought under the WR Act could still arise under the WR Act. The broad application of the costs provision has given rise to technical arguments that the provision does not apply in a range of proceedings not involving exercise of jurisdiction under the WR Act and its predecessors (see, e.g., Tristar Steering and Suspension v Industrial Relations Commission (NSW) (No. 2) [2007] FCAFC 95; 159 FCR 274). Given the nature and complexity of 'matters arising' that are determined before State Supreme Courts, the Federal Court and the High Court, it is not appropriate that the limitation on costs orders apply to matters arising under the Bill which do not involve the exercise of jurisdiction under the Bill.”
In relation to s.570 of the Fair Work Act 2009 (Cth), Justice White in Stanley v Service to Youth Council Incorporated (No 3) (supra) concluded:
“[18] … As can be seen, the intention when s 570(1) was first enacted was to confine the limitation on courts’ powers with respect to costs to those cases in which courts were actually exercising a jurisdiction under the FW Act.”
Section 570 of the Fair Work Act 2009 (Cth) remained in that form until it was amended and the new form came into law on 1 January 2013. With respect to that amendment, the effect of the amendment was to delete from s.570(1) the words “exercising jurisdiction under this Act” and substitute the words “in relation to a matter arising under this Act”.
Stanley v Service to Youth Council Incorporated (No 3) (supra) said:
“[20] The Explanatory Memorandum relating to the amendment stated:
Section 570 of the FW Act provides for courts exercising jurisdiction under the FW Act to award costs against a party to proceedings (including appeals) only in circumstances where the court is satisfied that the party instituted proceedings vexatiously or without reasonable cause, the party’s unreasonable act or omission caused the other party to incur costs, or the party unreasonably refused to participate in a matter before FWA that arose from the same facts as the court proceedings. Part 1 of Schedule 10 to the Bill will amend section 570 of the FW Act so that it operates in relation to matters arising under the FW Act, rather than in relation to courts exercising jurisdiction under the FW Act. This amendment confirms that the FW Act is generally a ‘no costs’ jurisdiction (including in appeal proceedings).
(Emphasis added)”
Justice White further observed:
“[23] Three matters of relevance for present purposes can be discerned from this sequence of events. First, as already noted, the legislative intention when s 570 was first enacted was to confine the limitation on costs to cases in which courts were actually exercising jurisdiction under the FW Act. Secondly, the effect of the 2012 amendment was to enlarge the scope of the costs limitation to proceedings “in relation to” a matter arising under the FW Act, whether or not those proceedings involved an exercise of jurisdiction under that Act. Thirdly, when enlarging the costs limitation, the legislature did not revert to the terminology of s 824 and its predecessors. It couched the restriction on the Court’s powers with respect to costs in different language and included the words “in relation to”. That prepositional phrase did not form part of s 824 of the WR Act or its legislative predecessors.
[24] Effect should be given to every word in s 570(1): Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; [1998] HCA 28; (1998) 194 CLR 355 at 382. This means that s 570(1) is not to be construed as though it provided only that a “party to proceedings in a court in a matter arising under this Act may be ordered by the court to pay costs ...”.
[25] In my opinion, the inclusion of the prepositional phrase “in relation to” in s 570, the explanation given for the amendment, and the circumstance that the legislature did not revert to the terminology of s 824, together support an inference that the legislative intention is that the costs limitation effected by s 570 should be greater than that afforded by s 824 of the WR Act and its predecessors. Courts’ powers with respect to costs are limited not just in proceedings “in a matter” arising under the FW Act, but in proceedings “in relation to a matter” arising under that Act.
[26] The phrase “in relation to” is usually taken to indicate some relationship or connection between two subject matters: Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533. The degree or closeness of the contemplated connection is to be determined by the statutory context: Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285.
[27] Ordinarily, the requisite degree of connection in the context of s 570 will be satisfied when an applicant seeks to enforce an entitlement for which the FW Act provides.
[28] The limitation on courts’ powers with respect to costs operates in respect of any “party to proceedings”, provided that those proceedings relate to a “matter” arising under the FW Act. On its face, the limitation operates whenever those considerations are satisfied, whether or not the proceedings also include claims under other federal legislation or in the accrued jurisdiction. The FW Act does not define the word “proceedings”, but generally it is used to refer to the action or means by which a party moves a court to grant the desired relief, rather than to individual claims or causes of action in the action. Thus, in Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia) [1996] 1 VR 17 at 20, Tadgell JA said of the word “proceeding” in s 3 of the Supreme Court Act 1986 (Vic):
[It] is used as a generic expression to embrace what was formerly comprehended individually and respectively by the expressions “action”, “cause” and “matter”. The expression “matter in the court” in the definition of “proceeding” in s 3 refers on that assumption to a proceeding in the sense of a vehicle by which the jurisdiction of the Court is invoked and not to the subject matter of a justiciable dispute.
[29] In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 509, Mason J noted authorities indicating that “matters” and “proceedings” are not necessarily co-extensive, and that proceedings may involve more than one matter.
[30] In Geneff v Peterson (1986) 19 IR 40 at 90, Gray J considered the meaning of the word “proceeding” in s 197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor of s 570, and said:
[T]he section operates in relation to a “proceeding”. There is only one proceeding before the Court, although that proceeding involves a number of separate claims, each of which might have been the subject of a separate proceeding. ... In my view, it is impossible to split the claims within a proceeding for the purpose of the application of s 197A.
…
[33] In my opinion, similar reasoning is appropriate in relation to s 570. The possibility that a matter arising under the FW Act may be so minor as to be insignificant in comparison with other causes of action does not require consideration in this case.
[34] There is presently only one proceeding before the Court. Although the applicant made multiple claims in the proceeding, raising separate causes of action, I do not think that each claim or each cause of action can itself be described as a “proceeding” for the purposes of s 570. Such a meaning would be inapposite in the context of s 570.
[35] SYC submitted that the circumstance that claims arising under the SD Act may be brought independently of the FW Act was relevant to the proper construction of s 570 but, to my mind, that is a circumstance which enlivens the question of construction, rather than an indication of its proper resolution.
[36] Accordingly, I conclude that s 570 applies irrespective of whether the claims in the proceedings are confined to FW Act claims. Provided that it can be said that the proceedings relate to matters arising under the FW Act, the costs limitation is applicable even if they include other claims.”
I am satisfied that the reasoning of Justice White in Stanley v Service to Youth Council Incorporated (No 3) (supra) also applies in the present case.
I am satisfied in the present case that the Common Law claims are a different matter within the proceeding for the reasons set out in the respondent’s submissions in reply:
“[8] While there is authority for the proposition that the restriction on costs in section 570 of the Act applies not only in respect of a statutory federal claim but also in respect of a common law claim brought in the Court’s accrued or associated jurisdiction, it is quite permissible to analyse individual claims within a proceeding in order to determine whether there exists a single controversy, such that “in the end, it is a matter of impression and of practical judgment whether a non-Federal claim and a Federal claim joined to the proceeding are within the scope of one controversy and thus within the ambit of a matter”.
[9] It is submitted that this is a case where the common claims made by the Applicant, which were rejected by the Court, are distinct from the claims made by the Applicant under the Fair Work Act 2009, such that the Court can conclude that the common law claims made by the Applicant did not involve a proceeding “…in relation to a matter arising under the Act” as provided by section 570 of the Fair Work Act 2009.
[10] This is because the Applicant’s claims at common law, namely, the alleged breach by the Respondent of the express or implied terms of her contract of employment that she was bullied and harassed at work and the Respondent did nothing about such alleged harassment and the claimed loss for breach of contract in paragraph 52 of the statement of claim, were distinct from the claims made by the Applicant under section 340(1) of the Fair Work Act 2009 and under section 351 of the Fair Work Act 2009.
[11] That is, the Applicant could have made her:
(a) claim under section 341 of the Fair Work Act 2009, namely, that she was dismissed because she made a complaint to the Respondent about bullying; and
(b) claims under 351 of the Fair Work Act 2009, namely, that she was the subject of sex discrimination,
without any reliance on facts alleged in the common law claims for breach of contract.”
[Footnotes omitted.]
This is a case where there is more than one matter in the proceedings (Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457). I am therefore satisfied I can deal with the Common Law matters under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth).
Common Law Matters
In the affidavit of Mr Neil filed 18 June 2013, he gives evidence that on 4 October 2012, the respondent delivered a formal notice of offer pursuant to the Rules to settle the proceedings by the respondent paying the applicant an amount of $7,500 inclusive of costs and interest. The offer was open for fourteen days. I am satisfied that it is appropriate to make an order for costs under the general power in s.79 of the Federal Circuit Court of Australia Act 1999 (Cth), because costs follow the result. The offer was not responded to.
The question I have to decide is whether I should make that order on an indemnity basis. The respondent argues that it is appropriate to make an order on an indemnity basis in the present circumstances because a formal offer was made. A costs order on an indemnity basis can be triggered when a party has failed to accept a reasonable offer of settlement.
In the present case I do not have any evidence of any costs agreement or any evidence as to what the indemnity costs might be. Furthermore, I am satisfied that, for the reasons set out in paragraphs 17 and 18 of the applicant’s submissions below, this is not a matter that should attract an indemnity costs order.
“[17] It is submitted that it was not an unreasonable act or omission for the Applicant to reject the Respondent’s offer of settlement given the stage of the proceedings at which the offer was made for the following reasons:
a. The offer was made by letter dated 4 October 2012 and remained open for acceptance only until 18 October 2012;
b. At that stage:
i. the Applicant had filed and served an application in form 2 as a Claim under the FWA alleging dismissal in contravention of a general protection.
ii. The Applicant had filed and served a statement of claim;
iii. The Respondent had filed a defence;
iv. Disclosure of documents had not taken place other than the record of some investigation interviews conducted by Ms Harrison as referred to in the affidavit of Ms Milner;
v. Statements of evidence of the parties had not been filed or served.
c. It is submitted that the relevant principles to be drawn from the cases with respect to the rejection of an offer in a costs regime under section 570 of the FWA is that usually a costs order will not be made where an offer is made prior to the party to whom the offer is made being able to assess their position and the offer by review of the other party’s evidential case as contained in the party’s affidavits of evidence.
d. The offer was made and expired before the Applicant received any affidavits of evidence of the Respondent or even disclosure of all relevant documents taking place. The Applicant was not in a position to make a “formal or proper assessment” of her case at that point. The Fair Work Commission had not issued an advice or certificate under section 370 of the FWA to the effect that the Applicant’s case did not have a reasonable prospect of success. It is submitted that it was not unreasonable at this stage to reject the offer given that the Applicant had not had the opportunity to review the affidavits of evidence of the Respondent’s witnesses.
e. The Respondent relies upon the decision in Cugura v Frankston City Council (No. 2) [2012] FMCA 530 at [37] to [38] per O’Sullivan FM but the decision was appealed with respect to the issue of costs. The appeal Judge found that the decision with respect to costs was based upon an incorrect finding of fact namely that the offer made in the matter was open for acceptance during the entirety of the conduct of the proceedings from the date it was made. The offer to settle in Cugura was made before affidavits of evidence were filed and served in the proceedings. At paragraph 43 of his decision O’Sullivan FM had determined that it may not have been unreasonable for the offer to have been 17 Donnelly v Edelsten [1994] FCA 992; (1994) 49 FCR 384 at 396 per Neaves, Ryan and Lee JJ rejected at the point at which it was made namely prior to the affidavits of evidence of the parties being available and an assessment of the evidence being made. Here the respondent’s offer was made and expired well before any affidavits of evidence were delivered or required to be delivered.
f. Further, by 4 October 2012 the Applicant had obtained some documents that had been referred to in the Respondent’s defence by requesting a copy in accordance with Rule 14.10 of the Federal Circuit Court Rules 2001. The Respondent had been asked to produce the documents referred to in the defence which were the records made by Ms Harrison of the interviews she conducted with witnesses during her investigation of the Applicant’s complaints. As Ms Milner’s affidavit filed with these submissions shows the records of interviews provided by the Respondent by letter dated 9 August 2012 were the records of interview of Ms James, Ms Donnelly, Ms Strange and Mr Cartwright. The record of interview of Ms Donnelly and Ms James provided evidence that corroborated the evidence of the Applicant regarding her interactions with Ms Strange and described incidents that the interviewees observed that they regarded as workplace harassment. Further the Respondent’s defence in paragraph 21 indicated that Ms Harrison believed that she had interviewed all relevant witnesses and kept records of those interviews. When the Respondent was asked to produce a copy of the records of interviews conducted by Ms Harrison it only produced some but not all records of interview, It did not produce the records of interview of Mr Shane McCarthy, Mr Jon McCarthy or Mr Neil. Subsequently when Ms Harrison produced her investigation file pursuant to a subpoena just before trial she included a record of interview with Mr Neil. This record of interview is dated 20 December 2011. That record of interview is not included in the letter of 9 August 2012 nor is it included in the Respondent’s affidavit of documents. It was reasonable for the Applicant to conclude at the date that the offer was made namely 4 October 2012 that there was substance to the Applicant’s argument as contained in the statement of claim that a proper investigation of the Applicant’s complaints had not been carried out.
[18] The Applicant’s conduct in rejecting the offer was not unreasonable given the amount of the offer – ie $7,500 inclusive of interest and costs. This is because:
a. The Applicant’s claim as set out in paragraph 52 of the Statement of Claim was for an amount of $19,247.25 for loss of salary directly related to the contract of employment which as pleaded, operated until 1 April 2012 at which time it could be terminated on 1 months notice;
b. The Applicant’s claim included an amount of $4,671.83 for annual leave entitlements of which approximately 64 hours or two weeks was owing to the Applicant as at 11 December 2011 being the last day at which she worked for the Respondent and further leave would have accrued during the balance of the contract of employment period;
c. The Applicant included a claim for loss of future earnings on the basis that she had reasonable prospects of remaining in employment with the Respondent in light of her performance record with the Respondent as reflected in the Respondent’s performance assessment of her21 and compensation of this character is recoverable as a loss of opportunity for a breach of contract claim;
d. The Court has jurisdiction with respect to a claim under the general protection provisions of the FWA to award general damages and the offer did not contain any component that took into account that form of relief which was claimed by the Applicant;
e. As at 11 December 2011 the Applicant’s annual remuneration was $90,987.00 The offer of $7,500 was less than one month of the Applicant’s remuneration (one month is $7,582,25).
f. The offer of $7,500 was not a favourable23 offer and the Applicant’s rejection of it is not unreasonable.”
[Footnotes omitted.]
I am not persuaded in the circumstances that it is appropriate to make an order for indemnity costs.
The Section 570 of the Fair Work Act 2009 (Cth) Claim
The basis upon which the respondent seeks costs under the Fair Work Act 2009 (Cth) is pursuant to s.570(2)(b):
“(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs;”
The argument made out by the applicant is that the failure to accept the offer is not justification for the order of costs, in that it was submitted that it was not an unreasonable act or omission, within the meaning of s.570(2)(b) of the Fair Work Act 2009 (Cth). This was set out in the applicant’s submissions at paragraph 17 and 18.
The difficulty I have with her submissions is that, seminal to this case was the email of the applicant that I found amounted to a resignation. The email was a document that she had in her possession and control from the commencement of the proceedings. The effect of that finding was that a significant part of her case collapsed.
In the present case, the respondent relies on the fact that the Court found that the applicant resigned with that email that she sent and argues that this made her rejection of the offer unreasonable. In my view that is sufficient in the present circumstances to justify an order for costs on a party and party basis.
I accept that paragraphs 17 and 18 of the applicant’s submissions support an argument that the costs order should not be on an indemnity basis.
The Interlocutory Costs Orders
I am not minded to make any decisions in relation to those. It is a matter for the parties to have the costs taxed.
The Quantum of Costs
The quantum of costs in the substantive matter is to be taxed on a party and party basis. Again that is a matter for the parties to have the costs taxed if they are unable to agree on the costs. It is not a matter for the Court to set those amounts.
I decline to make the draft orders sought by the respondent that have this Court determining the appropriate quantum for the costs orders. I decline to make the order in relation to the interlocutory costs, as that is a matter for taxation.
Conclusion
I will make an order for costs for the Common Law claims and the Fair Work claims. I will ascribe 50% of the proceedings to the Common Law and 50% to the Fair Work matter.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 29 June 2014.
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