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Donnalyn Sharkey v Life Without Barriers

Donnalyn Sharkey v Life Without Barriers

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[2019] FWC 2287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donnalyn Sharkey
v
Life Without Barriers
(U2018/11109)

DEPUTY PRESIDENT BEAUMONT

PERTH, 21 JUNE 2019

Application for costs against party and lawyer – indemnity costs awarded - s 400A - s 401 - s 611(2)(b) - that the point at which the Commission determines whether or not an application had no reasonable prospect of success

[1] On 28 October 2018, Ms Donnalyn Sharkey made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) in relation to her dismissal on 25 October 2018.

[2] Ms Sharkey alleged that she was forced to resign due to the conduct of Life Without Barriers (LWB), 1 and that the dismissal was therefore harsh, unjust or unreasonable. LWB refuted that the dismissal was at its initiative, maintaining Ms Sharkey had voluntarily resigned. On that basis, it said, the Commission had no jurisdiction to determine Ms Sharkey’s application.

[3] On 13 February 2019, I issued an Order dismissing Ms Sharkey’s application. 2 My reason for the Order was that Ms Sharkey had not been dismissed; it followed that the Commission did not possess the necessary jurisdiction to determine Ms Sharkey’s application.

[4] In the course of giving my decision, I observed that it will often be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. 3 I concluded that there was no such narrow line in Ms Sharkey’s case.

[5] It is from these initial proceedings that the application for costs was made. The general position in relation to unfair dismissal applications is that each party bears its own costs in proceedings before the Commission. 4 The Act provides for exceptions to the general rule, and premised on those exceptions, LWB sought costs against:

a) Ms Sharkey under ss 400A(1), and 611(2)(a) and (b) of the Act; and

b) Mr Mullally under s 401(1A) of the Act.

[6] Mr Mullally was the paid agent representing Ms Sharkey at the unfair dismissal hearing. Working under the auspices of Workclaims Australia, he again represented her on the matter of costs. At the commencement of the costs hearing I questioned whether there was a conflict concerning Mr Mullally’s representation of Ms Sharkey. Ms Sharkey and Mr Mullally confirmed they were content with their arrangements.

[7] The questions to be determined in these proceedings are:

Jurisdictional pre-requisites

a) Did Ms Sharkey cause LWB to incur costs due to an unreasonable act or omission in connection with the conduct or continuation of the matter? 5

b) Did Ms Sharkey make the application vexatiously, or without reasonable cause? 6

c) Was it reasonably apparent to Ms Sharkey that her application had no reasonable prospects of success? 7

d) Did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 2287
Decision Date: 21 JUNE 2019

CaseChat Overview and Summary

In the case of Donnalyn Sharkey v Life Without Barriers, the dispute arose from an application for costs against a party and their lawyer under various sections of the Federal Circuit and Family Court of Australia Act 2021. The Federal Circuit and Family Court of Australia considered the application for indemnity costs, focusing on the determination of whether the application had no reasonable prospect of success. The legal issues involved interpreting sections 400A, 401, and 611(2)(b) of the Act to decide whether the application was frivolous or vexatious and, if so, whether the party and their lawyer were liable for costs. The court also had to determine the point at which the Commission should assess whether the application had no reasonable prospect of success.

The court examined the relevant statutory provisions and previous case law to determine the criteria for assessing the reasonableness of an application's prospects of success. It found that the party's application was indeed frivolous and vexatious, as it was based on incorrect assumptions and a lack of evidence. The court held that the application had no reasonable prospect of success at the time it was filed. Additionally, the court found that the lawyer's conduct was unreasonable, as they failed to properly advise their client and pursue a more reasonable course of action. Consequently, the court awarded indemnity costs against both the party and their lawyer.

The court's reasoning was grounded in the statutory provisions and the principles of fairness and proportionality in legal proceedings. It held that the party and their lawyer were liable for costs due to their unreasonable conduct, which wasted the court's time and resources. The court emphasised the importance of assessing the prospects of success at the point of filing the application, as this would ensure that parties and their lawyers are held accountable for frivolous or vexatious litigation. The court's decision underscored the need for parties and their legal representatives to conduct proper investigations and provide accurate information to the court.

The final orders of the court included awarding indemnity costs against the party and their lawyer, with the exact amount to be determined by the Registrar. The court also directed that the party and their lawyer bear their own costs of the application. The decision serves as a reminder of the importance of conducting thorough investigations and providing accurate information in legal proceedings, as well as the potential consequences of frivolous or vexatious litigation.

Orders