David Pauling v Roy Hill Operations Pty Ltd

[2016] FWC 8867

[2016] FWC 8867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Pauling
v
Roy Hill Operations Pty Ltd
(U2016/9494)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 DECEMBER 2016

Application for relief from unfair dismissal – costs – agreed by consent.

[1] On 25 October 2016 I issued a decision 1 in which I dismissed an unfair dismissal application made by Mr Pauling with respect to the termination of his employment with Roy Hill Operations Pty Ltd (Roy Hill). On 8 November 2016 Roy Hill lodged an application for costs pursuant to s.400A of the Fair Work Act 2009 (the FW Act).

[2] That application was the subject of a hearing on 8 December 2016. In that hearing Roy Hill was represented by Mr Billings of counsel pursuant to the same grant of permission previously made. For at least the second part of the hearing, Mr Pauling was represented by Mr Muk, of counsel, pursuant to a grant of permission made under s.596(2)(c).

[3] The following decision reflects a position agreed between the parties.

[4] Section 400A of the FW Act states:

“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.”

[5] The Roy Hill application set out the grounds upon which it sought costs in the application. It is not necessary that I recite these grounds which relied in some measure on correspondence provided to Mr Pauling on 23 August 2016, which detailed a settlement proposal. Roy Hill additionally contended that a further settlement offer was made to Mr Pauling on 28 September 2016. In its application, Roy Hill contended that Mr Pauling acted unreasonably in rejecting its various settlement proposals and thereby caused it to incur significant costs.

[6] Mr Pauling has agreed with the grounds for the costs application specified in that application. Consequently, I am satisfied that he caused Roy Hill to incur significant costs because of his unreasonable acts or omissions in connection with his continuation of the application.

[7] The parties have agreed that the appropriate quantum of costs is $15,000 and that this should be paid in four equal instalments, at six monthly intervals, commencing from June 2017. An Order (PR588392) to this effect will be issued.

Appearances:

M Muk counsel for the Applicant

S Billing counsel for the Respondent.

Hearing details:

2016.

Adelaide (and Video-link to Perth)

December 8.

 1   [2016] FWC 7648 and Order PR586758

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