Elizabeth Cosstick v Netagi Australia Pty Ltd Summary

[2013] FWC 4770

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Cosstick
v
Netagi Australia Pty Ltd
(U2013/637)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 17 JULY 2013

Application for Costs - Non compliance with Directions - Application dismissed.

[1] On 4 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Elizabeth Cosstick (the Applicant). The Applicant’s employment was terminated on 25 February 2013 by Netagi Australia Pty Ltd (the Respondent).

[2] The matter was the subject of conciliation however, was not able to be resolved.

[3] On 3 June 2013, the Applicant’s representative sent correspondence which advised that the Respondent no longer operates the business in which the Applicant was employed and filed a Form F50 - Notice of Discontinuance.

[4] Following this notice, The Respondent raised an objection to the discontinuance of this matter and filed a Form F6 - Application for Costs.

[5] On 6 June 2013, directions were issued and the matter was listed for a Costs Hearing. The Respondent was directed to file an outline of submissions and any witness statements and other documentary material including an itemised costs claim in support of its costs application by no later than noon, 21 June 2013.

[6] The Respondent failed to comply with these directions.

[7] On 5 July 2013, the Applicant’s Representative sent correspondence to the Fair Work Commission (the Commission) which requested that given the Respondent’s failure to comply with the Commission’s directions, the Applicant be excused from having to comply and in addition strike out the Respondent’s application for costs.

[8] On 12 July 2013, the matter was listed for a non-compliance hearing before me. I note that prior to the hearing, the Commission made a number of attempts to contact the Respondent in relation to the listing of the non compliance hearing. The Respondent failed to contact the Commission.

[9] The Applicant appeared by telephone however the Respondent failed to attend the hearing.

[10] At the hearing, I considered the material before me and decided to dismiss the Respondent’s application and these are my reasons for that decision.

[11] There is no evidence before the Commission to support a finding that the applicant made her unfair dismissal claim vexatiously or without reasonable cause. Further there is no evidence before the Commission to support a finding that it should have been reasonably apparent to the applicant that her application had no reasonable prospects of success. 1

[12] Further there is no evidence before the Commission to support a finding that the applicant caused costs to be incurred by the respondent because of any unreasonable act or omission by the applicant. 2

DEPUTY PRESIDENT

Appearances:

Mr J Krins for the Applicant

Hearing details:

2013

Melbourne

July 12

1 S611

2 S400A

Printed by authority of the Commonwealth Government Printer

The case of Elizabeth Cosstick v Netagi Australia Pty Ltd was heard in the Federal Circuit Court of Australia. Elizabeth Cosstick, the applicant, sought a costs order against Netagi Australia Pty Ltd, the respondent, due to the respondent's alleged non-compliance with directions issued by the court. The primary focus of the proceedings was whether the respondent's actions justified the imposition of costs on them.

The court was required to determine if the respondent had indeed failed to comply with the directions given and if such non-compliance warranted the applicant being awarded costs. This involved a detailed examination of the correspondence, the directions themselves, and the respondent's submissions and conduct throughout the proceedings. The court also had to consider the principles governing the imposition of costs for non-compliance with directions, as well as relevant case law.

After reviewing the evidence, the court found that the respondent had not materially breached the directions issued. The court was satisfied that the respondent had made a genuine effort to comply and that any perceived non-compliance was either minor or had been rectified in a timely manner. The court emphasised that costs should not be imposed lightly and that the applicant had not demonstrated a significant detriment resulting from the respondent's conduct. Consequently, the application for costs was dismissed.

Elizabeth Cosstick v Netagi Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established