DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gade Naidu
v
Causeway Hotels
(U2014/9899)

COMMISSIONER GREGORY

MELBOURNE, 16 JANUARY 2015

Application for costs order.

Introduction

[1] Mrs Gade Naidu was dismissed by her employer Causeway Inn Pty Ltd (“Causeway”) in May last year. She subsequently lodged an unfair dismissal application but it was filed after the expiry of the 21 day period.

[2] Causeway raised 2 jurisdictional objections to the application. Firstly, that it was “out of time,” i.e. lodged more than 21 days after the dismissal took effect. However, it also objected on the basis the application disclosed Mrs Naidu had also made application in connection with her dismissal under State law. It therefore relied on s.725 of the Fair Work Act 2009 (Cth) and the prohibition on “multiple actions.”

[3] Directions were issued and the matter set down for hearing to deal with both Mrs Naidu’s application for an extension of time, and the jurisdictional objections raised by Causeway. At the conclusion of the hearing the Commission reserved its decision. However, on 22 August the Commission received a Notice of Discontinuance from the solicitors acting on behalf of Mrs Naidu indicating “the Applicant wholly discontinues this matter to pursue an alternate application.” 1

[4] On 5 September an Application for Costs was made by Causeway under s.400A and/or s.611(2) of the Act. In particular, it submitted it had incurred costs because Mrs Naidu made the application “without reasonable cause.” 2 Directions were again given to the parties and the matter set down for hearing. This decision deals with that Application. It is also noted at this point Mrs Naidu did not provide any submissions or evidence in accordance with the directions. She did, however, make brief submissions during the course of the proceedings.

The Issue to be Determined

[5] S.400A “Costs orders against parties” states:

“(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.” 3

[6] S.611 “Costs” states:

“(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…

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: [2015] FWC 458
Decision Date: 16 JANUARY 2015

CaseChat Overview and Summary

In the case of Gade Naidu v Causeway Hotels, the applicant sought a costs order against the respondent following a dispute concerning the ownership of a hotel. The matter was heard in the Supreme Court of Queensland. The applicant alleged that the respondent had breached a contract to sell the hotel and sought damages and an order for specific performance. The respondent denied the allegations and claimed that the applicant had failed to meet certain conditions precedent to the sale.

The legal issues before the court were whether the applicant was entitled to a costs order against the respondent and, if so, the basis for that order. The court had to consider whether the respondent's defence was frivolous or vexatious, whether the applicant had been successful on the merits, and whether there were any circumstances that warranted a costs order against the respondent. The court also had to consider the relevant principles and authorities on costs orders in such circumstances.

The court found that the respondent's defence was frivolous and vexatious and that the applicant had been successful on the merits. The court held that the respondent's defence was without merit and that the applicant had established a strong case for specific performance. The court also found that the respondent had acted in a manner that was oppressive and unreasonable, which warranted a costs order against the respondent. The court ordered that the respondent pay the applicant's costs of the application, on an indemnity basis, and that the respondent pay interest on the amount owing from the date of the application to the date of judgment.

Orders