David Johnston v The Trustee for the MTGI Trust T/A Macquarie Technology Group International

[2015] FWC 996

[2015] FWC 996 [Note: An appeal pursuant to s.604 (C2015/4021) was lodged against this decision - refer to Full Bench decision dated 7 September 2015 [[2015] FWCFB 6168] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Johnston
v
The Trustee for the MTGI Trust T/A Macquarie Technology Group International
(U2014/345)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 30 APRIL 2015

Application for relief from unfair dismissal - application for costs - ss.400A and 611 of the Fair Work Act 2009 - whether response to unfair dismissal application was made vexatiously or without reasonable cause - whether response had no prospects of success - whether costs had been incurred due to unreasonable acts or omissions of the respondent - costs award.

[1] On 24 October 2014, I issued a decision 1 awarding compensation to the applicant, Mr David Johnston, in respect of his application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against the respondent, The Trustee for The MTGI Trust. On 7 November 2014, the applicant made an application for costs under ss.400A and 611 of the Act.

[2] The costs application was listed for hearing in Sydney on 15 January 2015 and directions were issued for the parties to file written submissions and to provide their views as to whether the application could be determined by the Commission on the basis of written submissions and without the need for a hearing. The applicant’s submissions were to be filed by 4 December 2014 and the respondent’s submissions were to be filed by 18 December 2014.

[3] On 17 November 2014 the respondent lodged an appeal against the unfair dismissal decision. A stay order was sought in relation to the decision, the order for compensation and the costs application. The stay application was refused by Senior Deputy President Hamberger on 15 December 2014. 2

[4] The applicant filed his submissions in relation to the costs application on 11 December 2014. The submissions were filed some seven days late. The respondent did not file its submissions in accordance with the directions issued.

[5] On 13 January 2015, an email was sent by my associate to the parties reminding them of the hearing of the costs application and noting that there was no indication from either party as to their views about whether the matter could be dealt with on the basis of any written submissions and without the need for a formal hearing. On the same day, the applicant’s solicitor indicated by email that the applicant “was willing to pursue the option to have the matter determined on the written submissions alone”.

[6] On 14 January 2015 at 4:52pm, Mr Paul Wallace, the CEO of the respondent and its representative in the various proceedings, sent an email to my chambers responding to the applicant’s email of 13 January 2015 as well as providing the respondent’s submissions on the merits of the costs application. In brief, the respondent objected to the late filing of the applicant’s submission, did not agree to the costs application being determined on the basis of the written submissions and proposed that the hearing of the application should be stood over until the respondent’s lawyer was available and/or until the appeal was determined.

[7] The hearing of the costs application proceeded in Sydney at 10:30am on 15 January 2015. The start of the hearing was delayed by about 30 minutes as the respondent’s representative was not present at the hearing. At the outset of the proceedings, I made the following statement:

“I note that there is no appearance by the respondent in these proceedings. I have delayed the commencement of the proceedings this morning so that inquiries could be made as to whether the respondent was seeking to appear from Brisbane. No arrangements had been made for video conferencing facilities from Brisbane on the basis that there had been no request for such arrangements for video conferencing facilities be made. I've had some inquiries made as to whether or not Mr Wallace has attended in the Brisbane registry and the advice that I've received is that he has not. So in those circumstances I believe it's appropriate for me to proceed with the hearing of this matter.” 3

[8] I was satisfied that the respondent was aware of the date and time of the proceedings and chose not to appear in Sydney or Brisbane. I then proceeded to hear the matter and gave the applicant’s solicitor an opportunity to make any further submissions. The solicitor made some brief submissions and the proceedings concluded at 10:56am.

[9] During the proceedings, further information was requested from the applicant as to the costs being sought and the basis for the calculation of the costs. This information was to be provided by email to my associate with a copy to the respondent. At the conclusion of the proceedings it was indicated that the costs application would be determined having regard to the submissions made and filed by the parties. The reasons for my refusal to adjourn or delay the hearing and determination of the costs application were also explained. 4

[10] Shortly after the proceedings had concluded, my associate received the following email from Mr Wallace:

“I write this with great concern ...

At this time, a point after which the Hearing set down by you for today was to begin at 10:00am Sydney time.

* We have not received a copy of your response to the Applicant’s Representatives email requesting that the matter be heard “on the papers” & therefore obviously without representation taking place.

* We have not received a response from your office to the subsequent response we provided to the above in relation to directions.

* We have not received any notice from you about video conferencing facilities being made available to the Respondent, as was the case in the past.

* We have not received any advice from your office as to whether or not you will allow the Applicants submissions into the proceedings after his failure to meet the deadline set out in your directions.

* In fact we’ve not received any notice whatsoever subsequent to the below message from you some days ago.

We stand by eagerly awaiting fresh directions.”

[11] At 12:54pm, my associate received a further email from Mr Wallace alleging various abuses of process and bias in the way that the matter was conducted. The email also alleged errors in the unfair dismissal decision of 24 October 2014.

[12] At 4:03pm on 15 January, my associate responded to the emails as follows:

“Please be advised that the hearing of the costs application proceeded before Justice Boulton at 10:30am this morning in Sydney. Mr Maroulis, solicitor for the Applicant appeared in the proceedings. Before Justice Boulton proceeded with the hearing, enquiries were made as to whether there was any attendance at the Brisbane Registry by you or any other representative for the respondent. No arrangements had been made for video conference facilities for Brisbane as no request had been made for these facilities to be available.

The Transcript of the proceedings will be available next Tuesday 20 January 2015 and will be forwarded to you and Mr Maroulis.

In the proceedings, Justice Boulton rejected the respondent’s request for an adjournment of the proceedings. The Judge also requested that the costs claimed by the applicant be provided by close of business tomorrow, Friday 16 January 2015.

I have brought your email to the attention of Justice Boulton. His Honour has requested that any further submission in the matter should be filed by close of business on Thursday 22 January 2015.

In relation to your email of 15 January 2015 (sent at 12:54pm), Justice Boulton has asked me to respond as follows:

1. The respondent has been advised on many occasions to copy any correspondence forwarded to the Commission in this matter to the applicant. The emails to the applicant’s solicitor forwarding your emails were sent because you had not copied the emails to the applicant.

2. Most of the matters you raise are before a Full Bench of the Commission in the appeal which has been lodged by the respondent and will be dealt with by that Full Bench. The application for a stay of the decision was heard before Senior Deputy President Hamberger on 15 December 2014.

3. The Procedure for Dealing with Complaints about Members is available on the Commission’s website. You should refer to this if you consider that there is an appropriate basis for making a complaint.

4. The Judge decided, after considering the submissions in your email of 14 January 2015 and hearing the submissions of the applicant, that it would not be appropriate for him to stand aside or further delay the determination of the costs application before him. The reasons for this decision were given in the proceedings this morning.”

[13] A copy of the transcript of the proceedings was forwarded to the parties the following week. The respondent did not provide any additional submissions in relation to the costs application.

[14] In view of the appeal proceedings, I took the view that it would not be appropriate to give my decision in relation to the costs application until the appeal was determined. The decision of the Full Bench of the Commission dismissing the application for permission to appeal was given on 23 March 2015. 5

Relevant legislative provisions

[15] The costs application is made pursuant to s.400A and s.611 of the Act.

[16] Section 400A of the Act provides as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.”

[17] Section 611 of the Act is as follows:

“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 ofthe 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).”

Applicant’s submissions

[18] The applicant submitted that the respondent acted vexatiously or without reasonable cause in response to the unfair dismissal application (s.611(2)(a)), or in the alternative, that it should have been reasonably apparent to the respondent that its response to the application had no reasonable prospect of success (s.611(2)(b)). The applicant also relied upon s.400A, asserting that the respondent’s unreasonable conduct during the proceedings caused costs to be incurred.

[19] In support of the costs application, the applicant referred to a range of conduct by the respondent. In particular, it was submitted that:

● the respondent misled the Commission by suggesting that it had engaged the services of a lawyer and making representations to the Commission about the lawyer’s availability whereas in fact legal representation had not been retained;

● the respondent prolonged the proceedings as a result of the repeated interruptions made by its representative in relation to an “application submitted on an interlocutory basis” seeking the dismissal of the proceedings, despite rulings by the Commission that the respondent’s application would be dealt with in the context of the proceedings;

● the submissions made by the respondent in support of its interlocutory application were manifestly groundless, unsupported by any evidence and contradicted by the evidence of its only witness; and

● the respondent failed to adduce evidence that supported any aspect of its case or to deal with the main facts in issue in the proceedings.

[20] Accordingly, the applicant submitted that the respondent’s response to the unfair dismissal application was made without reasonable cause or vexatious and had “no reasonable prospect of success”. 6

[21] In relation to s.400A, the applicant referred to the respondent’s misleading assertions about legal representation, repeated interruptions to the proceedings and failure to put forward evidence to support its claims and assertions. In addition, it was submitted that the respondent's unreasonable conduct was evident from the following:

● making and then unreasonably withdrawing offers of settlement in the course of the proceedings;
● disregarding directions of the Commission in relation to the conduct of the proceedings, including directions for the filing of witness statements;
● requesting an adjournment to obtain legal representation and then not retaining legal representation; and
● agreeing to a date for a further hearing and then seeking an adjournment of the proceedings to be held on that day.

Respondent’s submissions

[22] In the email of 14 January 2015, the respondent made a number of submissions in response to the costs application.

[23] Reference was made to the insertion of s.400A into the Act in 2012 and to the following sections of the Explanatory Memorandum that accompanied the Amending Bill:

“168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.

169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.”

[24] The respondent submitted that the behaviour of the applicant in the proceedings should be examined, rather than its behaviour. It was said that the applicant failed to accept a settlement offer and had behaved badly by giving misleading evidence and by relying upon an unsupported medical condition in seeking an early hearing date when the proceedings were not able to be completed on the first day of hearing.

[25] It was also submitted that for the Commission to accept the applicant’s claims would in effect be to deny the respondent an opportunity to defend itself in the manner which it deems best because of the fear of an adverse costs order⁷. In particular, it was put that the interlocutory application was one properly constructed, filed and served and should not form the basis of the applicant’s costs application. Finally, it was submitted that the costs application should be dismissed and costs should instead be awarded to the respondent “given the absolute unsustainability of the application.”

Consideration

[26] Section 611(1) of the Act sets out the general rule in matters before the Commission, namely that parties should bear their own costs. The Commission, however, may order costs against a party in certain limited circumstances, as provided in s.611(2). In unfair dismissal matters, the Commission may also order costs against a party who has caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of a matter (s.400A(1)). 8 In the present case, the applicant relies upon both s.400A and s.611 in seeking an order for costs against the respondent.

[27] It is clear that an assessment of whether a response to an unfair dismissal application was made “vexatiously or without reasonable cause” or had “no reasonable prospect of success” should be undertaken with caution, particularly where there are disputed issues of fact or questions of law involved. 9 It will be a matter of judgement for the Commission as to whether it is satisfied that the prerequisites for the exercise of the power to award costs have been made out and, if so, whether an order for costs should be made. In general, it might be expected that it will only be in rare cases that a party will be ordered to pay costs in relation to Commission proceedings.

[28] The various expressions used in the Act and previous legislation to describe the circumstances in which the making of a costs order might be appropriate have been the subject of consideration in cases before the Federal Court and the Commission.

[29] In Nilsen v Loyal Orange Trust, 10 North J considered the meaning of “vexatious” as follows:

“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 may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.”

[30] A Full Bench of the Commission in E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing 11considered the exceptions to the general rule against the payment of costs in proceedings under the Act and in particular the exception where proceedings are instituted “without reasonable cause”. The Full Bench said:

“[30] We now turn to the expression ‘without reasonable cause’. A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”

...

[33] In construing s.570 and its legislative antecedents courts have observed that the test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgement, that is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.”

(footnotes omitted)

[31] The meaning of the expression “no reasonable prospect of success” in s.611(2) of the Act was considered by a Full Bench of the Commission in ACI Operations Pty Ltd v Cook. 12 The expression was also considered in the context of other legislation by the High Court in Spencer v The Commonwealth of Australia.13 The test of “no reasonable prospect of success” is an objective test.14 A Full Bench of the Commission in Baker v Salva Resources Pty Ltd took the view that a finding of “no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.15

[32] The phrase “unreasonable act or omission” was previously a term of s.658(3) of the Workplace Relations Act 1996 which provided for the making of costs orders in proceedings before the Australian Industrial Relations Commission in somewhat similar terms as under s.400A of the Act. In Goffett v Recruitment National Pty Ltd 16 a Full Bench of the Commission considered the conduct of the respondent party at various stages of the proceedings in order to determine whether there had been "deliberate or reckless” acts or omissions on its part which could be regarded as unreasonable and which caused the other party to incur costs in connection with the conduct of the proceedings.17

[33] I have considered the facts and circumstances of the present matter and the submissions of the parties having regard to the guidance found in the above-mentioned cases. In so doing, I have been mindful of the cautious approach that the Commission should take in awarding costs and the right that a respondent has in proceedings before the Commission to defend a case against it.

[34] In my view, the applicant has made out its case that the response of the respondent to the unfair dismissal application and its conduct in the proceedings were of such a nature to make it appropriate to award costs in this matter. I agree with the applicant’s submissions that the respondent’s actions during the proceedings were unreasonable and led to costs being unnecessarily incurred. In particular, I am satisfied that: the respondent responded to the unfair dismissal application vexatiously; that it should have been reasonably apparent to the respondent that its response to the application had no reasonable prospect of success; and that the respondent caused costs to be incurred because of unreasonable acts and omissions in connection with the conduct of the proceedings. I am not satisfied that the whole response filed by the respondent was “without reasonable cause”, although some aspects of the case put by the respondent might be described as “untenable” or “groundless”.

[35] In reaching these conclusions, I have had regard to the totality of the respondent's response to the unfair dismissal application and its conduct during the course of the consideration by the Commission of that application. Parts of that response and conduct are referred to in the unfair dismissal decision. 18 At the outset of the decision it is said that:

“[4] The hearings of this matter were unnecessarily protracted and the determination of the matter more difficult largely as a result of the conduct of the respondent and its representative. This conduct included failure to comply with directions as to the filing of submissions and witness statements, 19 making allegations and complaints about both the conduct of the Commission’s proceedings and the conduct of the applicant’s solicitor, misleading the Commission and the applicant about legal representatives acting for the respondent or having given legal advice about the proceedings20, making and then unreasonably withdrawing offers of settlement, seeking the adjournment of proceedings without due cause, and generally seeking to delay and frustrate the proper hearing process.

[5] Despite the complications resulting from the approach adopted by the respondent to the proceedings, the factual background to the matter is relatively straightforward ...”

[36] Whilst I have considered and generally accept the range of matters referred to in the submissions of the applicant, I have had particular regard to the following matters.

(a) The failure of the respondent to provide evidence in support of its submissions and response. The respondent’s submissions and response in relation to the unfair dismissal application were diverse and covered a range of matters including alleged serious misconduct on the part of the applicant, abandonment of employment, presentation of misleading evidence, and failure to identify the correct employer and trustee for the MTGI Trust. The respondent’s only witness, Mr Kerr, gave limited evidence in the proceedings. 21 The majority of the respondent’s submissions were not supported by any evidence22 and therefore amounted to little more than allegations and assertions.

(b) The general conduct by the respondent and its representative in the course of the proceedings, including before, during and after the formal hearings were conducted. These actions included: persistent interruptions to the proceedings and disregard of rulings and directions given by the Commission; seeking the dismissal of the unfair dismissal application as an abuse of process; placing unreasonable time-frames and conditions on offers of settlement made by the respondent in the course of the proceedings; making representations and submissions to the Commission, other than in accordance with the directions issued, through a series of emails some of which were not copied by the respondent to the applicant or his solicitor; and making allegations and complaints of professional misconduct against the applicant's solicitor and the Commission.

(c) The respondent misled the Commission and the applicant about alleged legal representation. There were claims by the respondent's representative to the effect that the respondent had retained legal representation in the matter. This was the basis for seeking adjournments of the proceedings and for refusing to provide the applicant with details of settlement offers made by the respondent during the course of the proceedings. After attempting to contact the respondent’s legal representatives by phone, the applicant’s solicitor informed the Commission that no legal representative had been retained and that the solicitors referred to advised that they had not been retained to represent the respondent and had no instructions to do so.

[37] In the present case there is clear evidence of unreasonable conduct by the respondent. The conduct of the respondent crossed the line between what might be described as a robust defence to an unfair dismissal claim and an attempt to harass, intimidate or embarrass the applicant and the Commission in such a way as to prejudice the fair hearing and determination of the matter. I am satisfied in this regard that the respondent responded to the application vexatiously (s.611(2)(a)) or, at the least, that the respondent caused costs to be incurred by the applicant because of its unreasonable acts in connection with the conduct of the matter (s.400A(1)).

[38] I am also satisfied that it should have been reasonably apparent to the respondent that the response to the application had no reasonable prospect of success in circumstances where evidence was not adduced in support of its case. 23 In this regard it is also noted that the initial defence to the unfair dismissal claim, namely that the applicant was not entitled to personal/carer's leave under s.97 of the Act, was based upon a questionable interpretation of the relevant legislative provisions. This was pointed out to the respondent at an early stage of the proceedings.24

[39] For completeness, I would indicate that I have not been persuaded by the submissions of the respondent that it would be inappropriate in the circumstances of the present matter to make an order for costs. In particular in relation to those submissions, I do not consider that it has been demonstrated that the applicant sought to mislead the Commission in his testimony in the proceedings in any significant respect or that there were any actions on the part of the applicant or his solicitor in the course of the proceedings which might be regarded as improper or unreasonable. I also do not accept that making an order for costs in this matter would be tantamount to denying the respondent the opportunity to defend itself against the unfair dismissal application. As set out earlier in this decision, I consider that the response by the respondent went beyond what might be described as a robust defence to the application. It might be added that the response included threats made by the respondent from the very outset of the proceedings and at various other stages that it would seek to recover costs against the applicant if the unfair dismissal application was not discontinued.

[40] In all the circumstances of the present case, it is appropriate to make an order for costs against the respondent. The hearing and determination of the unfair dismissal application was unreasonably delayed and prolonged as a result of the conduct of the respondent in the proceedings. The conduct extended beyond what might be regarded as reasonable in mounting a rigorous defence to the application and sought to compromise the due hearing of the application and the proper conduct of the proceedings before the Commission.

Order for costs

[41] The amount of costs sought by the applicant was considered in the proceedings on 15 January 2015. 25 The applicant was then requested to provide by email a further indication of the costs incurred in relation to the proceedings leading to the unfair dismissal decision. The email from the applicant's solicitor was forwarded to the Commission and the respondent's representative on the afternoon of 15 January 2015. The email indicated that the costs claimed by the applicant were in the amount of $16,939.71. No submissions were received from the respondent regarding the amount of costs claimed.

[42] Under the Act, the Commission is given a broad discretion to award costs in unfair dismissal matters, provided that it is satisfied that circumstances referred to in s.400A(1), s.401 or s.611(2) have arisen. An award of costs may be made on a party and party basis or on an indemnity basis. 26 In this regard it is noted that since the Act was amended in 2012, the Commission may under s.400A order costs against a party who has caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter. It would seem almost axiomatic that an unreasonable act or omission that causes a party to incur costs in a proceeding would provide a basis for an order being made not for party and party costs but for costs on a ‘solicitor and client’ basis or on an indemnity basis.27

[43] In relation to the amount of costs to be awarded, s.403 allows for the prescription of a schedule of costs. It provides as follows:

“403  Schedule of costs

             (1)  A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

   (a)  under section 611 in relation to a matter arising under this Part; or

   (b)  under section 400A or 401;

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

             (2)  If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 400A or 401, the FWC:

   (a)  is not limited to the items of expenditure appearing in the schedule; but

   (b)  if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

[44] Schedule 3.1 of the Fair Work Regulations 2009 sets out the Schedule of Costs. 28 It provides in tabular form for various matters for which charges may be made and the relevant charge. In relation to some matters, the charge is specified as a particular dollar amount. For other matters, the charge is specified to be a particular dollar amount or an amount "at the discretion of the FWC". In the case of some matters, the charges that might be made will be those that are considered to be reasonable by the Commission. For example, in relation to the general care and conduct of a matter, the Schedule provides that the Commission may allow an amount which it “considers reasonable in the circumstances of the case".29 In relation to fees for solicitors appearing as counsel in appropriate cases, the Schedule provides that the Commission may allow an amount which it "considers to be fair and reasonable according to the circumstances of the case and the seniority of the solicitor".30

[45] Section 403(2) provides that the Commission is not restricted in its award of costs to the items of expenditure listed in the schedule. However, if an item does appear in the schedule, the Commission must not award costs in relation to that item higher than the amount specified.

[46] The parties did not present detailed submissions regarding the costs incurred by the applicant in relation to the unfair dismissal application or the appropriate amount of costs which should be awarded in this matter. However, having regard to the conduct of the proceedings and the circumstances of the case, I am satisfied that significant legal costs have been incurred by the applicant in pursuing the unfair dismissal application. Those costs have included the costs relating to the general care and conduct of the matter, including in dealing with and responding to the numerous emails sent to the Commission by the respondent in the course of the matter and the allegations raised by the respondent, and costs associated with the appearances of the applicant's solicitor in the hearings. As set out earlier in this decision, I am also satisfied that costs have been incurred by the applicant due to the respondent’s unreasonable conduct in the proceedings and its pursuit of a response which had no reasonable prospect of success.

[47] I have decided that it is appropriate in this matter to make a lump-sum award of costs. 31 This will avoid the expense, delay and possible aggravation which might be involved in further proceedings regarding the taxation and assessment of costs.

[48] In all the circumstances of the present matter, I consider that it is appropriate to award the applicant approximately half of the costs claimed. Having regard to the difficulty of the matter and the complicated and protracted nature of the unfair dismissal proceedings, I consider that such an amount to be reasonable and fair in the circumstances of the case.

[49] An order will be issued accordingly.

SENIOR DEPUTY PRESIDENT

Appearances:

V Maroulis, solicitor, on behalf of the applicant.

The respondent did not appear at the hearing.

Hearing details:

2015:

Sydney.

January 15.

Final written submissions:

Applicant: 15 January 2015.

Respondent: 15 January 2015.

 1   [2014] FWC 7098.

 2   See Transcript of matter C2015/7752 on 15 December 2014 before Hamberger SDP at PN 187 - 189.

 3   See Transcript of matter U2014/345 on 15 January 2015 at PN1157.

 4   See Transcript of matter U2014/345 on 15 January 2015 at PN1185-1186.

 5   The Trustee for The MTGI Trust T/A Macquarie Technology Group Internationalv David Johnston[2015] FWCFB 1288.

 6   See Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10].

7 See Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 at [29]; (2008) 170 FCR 574; (2008) 176 IR 245.

 8   See also s.401 which provides for the costs orders being made in unfair dismissal matters against lawyers and paid agents.

 9 In Heidt v Chrysler Australia Ltd, (1976) 26 FLR 257 at 274 Northrop J said:

“Great care must be exercised to ensure that in finding that a party has instituted proceedings vexatiously or without reasonable cause, that party is not improperly deprived of his freedom from liability to pay costs to an opposing party. The test is a substantial one.”

 10   Nilsen v Loyal Orange Trust (1997) 76 IR 180, 181; citing Attorney-General v Wentworth (1988) 14 NSWLR 481, 491; cited in Holland v Nude Pty Ltd (t/as Nude Delicafe) (2012) 224 IR 16 at [7].

 11   [2014] FWCFB 810.

 12   [2012] FWAFB 3292

 13 (2010) 241 CLR 118. See especially at 132-133 per French CJ and Gummow J and at 141 per Hayne, Crennan, Kiefel and Bell JJ.

 14   Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257; cited in Dryden v Bethanie Group Inc[2013] FWC 224 at [20].

 15   [2011] FWAFB 4014 at [10].

 16   [2009] AIRCFB 626

 17   Ibid at [35], [47].

 18   See [2014] FWC 7098 in particular at [4] - [5], [8] - [10], [15] - [16], and [42] - [50].

 19   This included the making of representations and submissions to the Commission, other than in accordance with the directions issued, through a series of e-mails some of which were not copied by the respondent to the applicant or his solicitor.

 20   See Transcript at PN 859-862, 878-879.

 21   The evidence of Mr Kerr was not presented in accordance with directions given by the Commission regarding the filing of evidence and witness statements and was adduced on the second day of the hearing. The evidence was of little significance or support in relation to the respondent’s case.

 22   See [2014] FWC 7098 at [19], [25], [45], [46], [48], [52], [54], [71].

 23   See Ranieri v BioGiene Pty Ltd[2011] FWA 9138 at [12].

 24   See [2014] FWC 7098 at [15] and references there cited.

 25   See transcript at PN1171-1183, 1185.

 26   See Stanley v QBE Management Services Pty Ltd[2012] FWA 10164. There is a very useful consideration by Commissioner Jones in this case as to the basis for awarding indemnity costs in Commission proceedings. See also Lock v Aged Care & Housing Group Inc[2013] FWC 4717 and Hennigan v Rocla Pty Ltd[2014] FWC 2290.

 27   See Goffett v Recruitment National Pty Ltd [2009] AIRCFB 626 at [48]-[52].

 28 See reg.3.08 of the Fair Work Regulations 2009.

 29 Item1201 of Part 12 of Schedule 3.1 of the Fair Work Regulations 2009.

 30 Item1302 of Part 13 of Schedule 3.1 of the Fair Work Regulations 2009.

 31   A similar approach was taken in Ghali v Sutherland Shire Montessori Society (Inc) T/A Sydney Montessori School [2015] FWCFB 345.

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