Kai Zhu v Keco City Development Group (Australia) Pty Ltd

[2020] FWC 913

[2020] FWC 913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kai Zhu
v
Keco City Development Group (Australia) Pty Ltd
(U2019/7095)

DEPUTY PRESIDENT CROSS SYDNEY, 15 MAY 2020

Application for an unfair dismissal remedy - Respondent costs application filed 4 December 2019.

BACKGROUND

[1] An application was filed on 27 June 2019, by Mr Kai Zhu (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009(Cth) (the “Act”). The Applicant sought an unfair dismissal remedy of reinstatement or in the alternative compensation (the “Application”) following his dismissal by Keco City Development Group (Australia) Pty Ltd (the “Respondent”) on 14 June 2019. At the commencement of proceedings both the Applicant and the Respondent were represented by Lawyers. The Applicant was represented by Mills Oakley (the “Applicant’s Solicitor”), and the Respondent was represented by Dentons Australia Limited (the “Respondent’s Solicitor”).

[2] On 5 July 2019, the Respondent’s Response to the Application was filed. Regarding reasons for dismissal, that response outlined the following:

“1. The reason the Applicant’s employment was terminated was because he did not comply with his duties as an employee, including the duty of fidelity and the duty to comply with reasonable and lawful directions.

2. The Applicant had in his possession a laptop belonging to Keco City. Before the laptop was returned to Keco City, the Applicant arranged for a forensic image of the contents of the laptop to be taken by a computer expert he retained.

3. Forensic analysis of the laptop has since revealed mass deletion of files from the laptop prior to the image being taken. Many of the names of files deleted have since been forensically retrieved, and refer to Keco City business. That is, the Applicant destroyed Keco City’s confidential information without permission and potentially to its detriment

4. This conduct on the part of the Applicant revealed a deliberate intention to take his employer’s property and prevent its access so as to conceal the Applicant’s additional wrongful activities. This is unlawful behaviour in breach of the contract of employment.

5. On 3 June 2019 Keco City requested a copy of the laptop image, as it contained confidential Keco City data which appeared to be otherwise unavailable to the company. The Applicant refused. The request was made again on 11 June 2019 in writing. This request was accompanied by a clear warning that it was a lawful and reasonable direction from Keco City as his employer, and that his employment contract would be terminated if he did not comply. The Applicant again refused.

6. The Applicant therefore deleted data belonging to his employer, and subsequently refused to provide Keco City with access to the remaining copy of that information. In the process, he refused to comply with a lawful and reasonable direction, after being given warning of the consequences of doing so.

7. The employment relationship has irreparably broken down. The Applicant and Keco City have each engaged lawyers in their dealings with one another. The Applicant has also threatened to bring legal proceedings against Keco City on numerous occasions.”

[3] On 17 July 2019, the Respondent’s Solicitor wrote to the Applicant’s Solicitor detailing what was described in a sub-heading of the letter to be “Potential misconduct” that had come to light.

[4] On 5 August 2019, the Respondent’s Solicitor wrote to the Applicant’s Solicitor detailing further instances of alleged serious misconduct by the Applicant that had come to light.

[5] On 7 August 2019, the Applicant’s Solicitor wrote to the Respondent’s Solicitor in response to the letter of 5 August 2019. In that letter the Applicant’s Solicitor asserted the following:

“First, our client continues to deny any wrongdoing and welcomes the opportunity to respond to these allegations. However, it is procedurally unfair to continue to make allegations of misconduct without providing our client with an opportunity to respond. This is especially true in circumstances where our client’s employment was terminated without our client being provided an opportunity to answer the allegations which your client now seeks to rely upon to justify the termination of our client’s employment.”

[6] On 16 August 2019, the Respondent’s Solicitor wrote to the Applicant’s Solicitor advising that the Respondent did “…not propose to engage in the cost of providing [the Respondent’s] records pre-emptively”.

[7] On 18 September 2019, the Applicant’s Solicitor wrote to the Respondent’s Solicitor and offered to withdraw the Application with no order as to costs upon payment of two weeks’ pay.

[8] On 30 September 2019, the Respondent’s Solicitor wrote to the Applicant’s Solicitor inviting the Applicant to discontinue the proceedings and pay the Respondent’s total legal costs (excluding counsel’s fees) in the amount of $25,071.00.

[9] On 22 October 2019, the Applicant’s Solicitor wrote to the Respondent’s Solicitor requesting access to a range of documents, and proposing an adjournment and amendment to the timetable for the filing of submissions and evidence. A separate request for documents in proceedings between the parties in the Supreme Court of New South Wales (the “Supreme Court Proceedings”), which appeared to overlap partially the request in the unfair dismissal proceedings, was also made on 22 October 2019, by the Applicant’s Solicitor writing to the Respondent’s Solicitor.

[10] On 24 October 2019, the Application was mentioned before the Commission. The Application was relisted on the Commission’s own initiative due to the failure of both the Applicant and the Respondent to comply with directions for the filing of submissions and statements in preparation for hearing. The hearing of the matter was adjourned by consent, and Counsel for both the Applicant and the Respondent noted that time was required to allow the Applicant to respond to allegations made post the termination of his employment.

[11] On 29 October 2019, the parties participated in a further Conciliation before the Commission as presently constituted. That Conciliation was unsuccessful. In that part of the proceedings that day that were on the record, Counsel for the Applicant identified that there was an issue regarding documents to which the Applicant needed access.

[12] On 30 October 2019, the Applicant filed with the Commission, and served on the Respondent, a Form F52 - Application for order for production of documents (the “Request for Production”). That same day the Respondent’s Solicitor wrote a letter to the Applicant’s Solicitor which summarised in the first substantive paragraph the Respondent’s objection to the Request for Production in the following terms:

“The materials your client has requested in the Form F52 - Application for order for production of documents go well beyond the scope of these proceedings, and encompass a large number of business records that could not reasonably be expected to serve any legitimate purpose in your client’s application.”

[13] On 7 November 2019, the Commission issued an Order for Production requiring the Respondent to produce the letter of instruction provided to Grant Thornton and the PricewaterhouseCoopers report dated 23 May 2019.

[14] On 20 November 2019, the Applicant’s Solicitors wrote to the Respondent’s Solicitor advising that the Applicant was prepared to discontinue the Application on the basis that there be no order as to costs. That offer was rejected the same day by the Respondent.

[15] On 21 November 2019, the Applicant discontinued the unfair dismissal proceedings. On 4 December 2019, the Respondent made an application for costs (the “Costs Application”) that is the subject of this decision.

[16] On 16 December 2019, directions were issued regarding the conduct of the Costs Application. Pursuant to those directions:

a) On 17 January 2020, the Respondent filed an Outline of Submissions and a Witness Statement of Ruth Nocka, the Solicitor for the Respondent in these proceedings. That statement attached the various pieces of correspondence referred to in paragraphs [3] to [8] above; and

b) On 13 February 2020, the Applicant filed an Outline of Submissions and a Statement of Kai Zhu dated 13 February 2020.

[17] While the directions provided for submissions and materials in reply to be filed by 21 February 2020, the Respondent indicated that it did not wish to file any such materials.

The Respondent’s Submissions

[18] The Respondent relied upon Sections 400A and 611(2) of the Act, and submitted that the Commission has the discretion to award costs against the Applicant if it is satisfied that any of the following circumstances exist:

a) the Application was made vexatiously;

b) the Application was instituted without reasonable cause, and it should have been reasonably apparent to the Applicant that the Application had no reasonable prospect of success; and

c) the Respondent incurred costs because of an unreasonable act or omission of the Applicant in connection with the conduct or continuation of the proceedings.

[19] The Respondent submitted that it relied on evidence contained in two statements of Jiawen Liang filed 17 September 2019 and 17 October 2019, and statements of Dominik Breznik dated 16 October 2019, Nigel Carson dated 16 October 2019, Alexander Bell dated 17 October 2019, and the Statement of Ms Nocka dated 17 January 2020, referred to above. It is notable that excluding the statement of Ms Nocka, the statements upon which the Respondent sought to rely were prepared for matters involving the Application itself, and were not read in proceedings nor their deponents tested in any way.

(a) Vexatious Application
[20] As to the Application being made vexatiously for the purposes of s 611(2)(a), the Respondent submitted that the circumstances surrounding the Application demonstrated that it was made with the predominant purpose of seeking to gain a collateral advantage or that it was not brought for the purpose of having the Commission adjudicate on the issues to which it gave rise. The circumstances illustrative of that were said to be:

(a) The Application was made seeking the remedy of reinstatement, however at the time of lodging the Application and seeking to be reinstated the Applicant was a plaintiff in the Supreme Court Proceedings seeking to wind up the Respondent.

(b) The Request for Production was made in the course of the proceedings, having also been pursued in the Supreme Court Proceedings. In circumstances where the vast majority of the records sought in the Records Application served no legitimate purpose related to the issues in the Application, the apparent purpose of such application was the deployment of those records in the Supreme Court Proceedings. The Applicant’s withdrawal of the Application soon after the Commission’s substantial denial of the Records Application supported the contention that the Request for Production was a collateral advantage sought to be gained by the Applicant in bringing the Application.

(b) Without Reasonable Cause/No Reasonable Prospects of Success

[21] The Respondent submitted that the Application was made ‘without reasonable cause’ and ‘without reasonable prospects of success’ on the basis that the Applicant was on notice from 29 April 2019, almost two months before the Application was filed, that he was the subject of an investigation by the Respondent into allegations of serious misconduct. These allegations were outlined in the Respondent’s response to the Application lodged 5 July 2019, and further detailed in correspondence issued to the Applicant. As the beneficiary of alleged illegitimate transfers, the Applicant should have been aware that the discovery and substantiation of such conduct would justify immediate dismissal and support the Respondent’s decision to terminate the Applicant’s employment. It follows that the Application should not have been made, and objectively determined, was manifestly untenable.

[22] Further, the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code as an “Other Dismissal”. In circumstances where the Applicant was represented at the time of commencing the Application, the Respondent’s compliance with the Dismissal Code should have informed the Applicant that the Application should not have been made and was incapable of being maintained.

(c) Unreasonable Act or Omission for Purposes of s 400A

[23] The Respondent submitted that it was of significant relevance that the Respondent:

a) Had informed the Applicant that the Respondent was conducting an investigation into allegations of serious misconduct on the Applicant’s behalf and that his employment was suspended;

b) In its Response, made the Applicant aware that matters of serious misconduct in relation to illegitimate transfers of the Respondent’s funds had come to its attention that justified termination of the Applicant’s employment;

c) Made the Applicant aware by numerous pieces of correspondence of the many instances of misconduct that supported the Respondent’s position that the Application was bound to fail; and

d) Invited the Applicant, by way of letter, to discontinue the proceedings and put the Applicant on notice of an intention to seek costs;

[24] Taking into account the above facts, the Respondent submitted that the Commission should exercise its discretion to award costs pursuant to s 400A, given authorities in support of the proposition that s 400A envisages unreasonably failing to discontinue an unfair dismissal application (Stephen Brooker v Autolync t/a Autolync [2017] FWC 5108 at [24]; citing Kube v Dominelli Group Pty Ltd t/a Rockdale Nissan [2016] FWC 8933 at [15]). In the event that the Commission was not satisfied that it should exercise its discretion to award costs from the commencement of the Application, the Respondent submitted that costs be awarded pursuant to s 400A from the time of the various pieces of correspondence referred to above.

The Applicant’s Submissions

(a) Vexatious Application

[25] Regarding the question of reinstatement, the Applicant submitted that the Respondent does not explain why the seeking of reinstatement in the context of separate winding up proceedings leads to an allegation of vexation. There is nothing improper in seeking alternative remedies in relation to the separate legal relationships of director and employee, particularly in circumstances where neither jurisdiction could resolve the issues in the other.

[26] As to the allegation of improper purpose, and the deployment of records in the Supreme Court Proceedings, the Applicant submitted that while there was no evidence of such deployment, the allegation itself implicitly alleging a breach of the Harman implied undertaking 1.

(b) Without Reasonable Cause/No Reasonable Prospects of Success

[27] The Applicant agreed that the test for without reasonable cause or without reasonable prospects is that the claim was manifestly groundless, so obviously untenable that it cannot possibly succeed, or so lacking in merit as to not be reasonably arguable.

[28] The Applicant noted that the meaning of that phrase “without reasonable cause” was discussed in Kanan v Australian Postal Telecommunications Union 2 (“Kanan”) as follows:

“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. That is the situation in the present case.”

[29] The Applicant identified that the Respondent’s submission was that the Application was made without reasonable cause because the Respondent had previously made allegations of serious misconduct against the Applicant, and that the discovery and substantiation of such conduct would justify immediate dismissal and support the Respondent’s decision to terminate the Applicant’s employment. On the basis of that submission, every unfair dismissal application made in the face of allegations of serious misconduct that were subsequently substantiated would lead to a costs order.

[30] The Applicant noted that the Respondent’s submission is premised on the following conclusions:

(i) that the conduct of the Applicant constituted misconduct;

(ii) that the misconduct is substantiated;

(iii) that the substantiated misconduct was a valid reason for termination;

(iv) that the valid reason led to the dismissal not being unfair or unjust;

(v) that the dismissal was not otherwise harsh; and

(vi) that the application can then be described as manifestly groundless.

[31] The Applicant submitted that on the case at the point of discontinuance, none of the above findings had been made. Nor could they reasonably be inferred from the evidence as a whole.

(c) Unreasonable Act or Omission – s.400A

[32] The Applicant noted the Respondent’s submission that costs should be ordered because s 400A envisages an Applicant unreasonably failing to discontinue an unfair dismissal application. While s.400A certainly does so envisage costs in that particular circumstance, the Applicant submitted there was no basis for a determination that the Applicant unreasonably failed to discontinue.

[33] There were two offers to settle proposed by the Respondent. The first was an offer set out in a letter of 5 August 2019 proposing that the Applicant discontinue. The second was an offer set out in a letter of 30 September 2019 proposing discontinuance and a payment of $25,071.00 to the Respondent by the Applicant.

[34] Neither offer showed any notion of compromise of the Applicant’s claim. Both offers required a total capitulation by the Applicant. The second offer required even more, being payment by the Applicant of a substantial sum to the Respondent. The Applicant did not act unreasonably in rejecting either offer.

[35] The Applicant particularly noted that in the Statement of Ms Nocka, the Respondent did not set out the following offers made by the Applicant:

i. on 18 September 2019, the Applicant offered to settle for the amount of two weeks’ notice; and

ii. on 20 November 2019, the Applicant offered to settle for a discontinuance with no order as to costs.

[36] The Applicant submitted that the above offers involved a very substantial compromise. They were reasonable in the circumstances. More importantly, they showed a genuine intention to participate in a settlement process.

Consideration

(a) Vexatious Application

[37] 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. In Qantas Airways Ltd v Paul Carter 3, the Full Bench found:

We refer to the approach we have taken to considering if the provisions of s.611(2)(a) or s.611(2)(b) are established. We first deal with the application made on the basis that Qantas has made its appeal vexatiously. The approach generally taken by members of the Commission as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust (Nilsen). Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by his Honour was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. About this provision his Honour said:

‘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.’”

[38] Nothing in the Application disclosed a predominant purpose in its institution to harass or embarrass the Respondent. Quite to the contrary, the Application contained a coherent agitation challenging the original allegations of misconduct. In response to Question 3.2, “Why was the dismissal unfair?”, the Application provided:

“3.2 Why was the dismissal unfair?

1. The direction to provide a copy of the laptop image was not a direction which could be considered to reasonably form part of my role as an employee of Keco City. Accordingly, I did not consider that the direction was a lawful or reasonable direction.

2. The dismissal was a disproportionate response to not complying with the direction and is not a justifiable basis on which to terminate my employment.

3. The dismissal was unjust as the direction was an attempt to disguise an ulterior purpose of Keco City to terminate my employment. At the time of the dismissal, Keco City were allegedly investigating my conduct and that investigation had not concluded. I attach a copy of the relevant correspondence which relates to the investigation.

4. Keco City advised me that I would have an opportunity to respond to any a allegations of wrongdoing, however this opportunity was not afforded to me and I was subsequently dismissed.

5. Keco City did not notify me of any deficiencies in my performance or conduct at work at any time prior to receipt of the letter dated 29 April 2019, which referred to an investigation and that letter provided no details about any deficiencies of performance.”

[39] There was nothing remarkable in the above explanation of perceived unfairness, nor the agitation of the remedy of reinstatement. It was also not inconsistent with that remedy of reinstatement for the Applicant to seek the winding up of the Respondent in the Supreme Court Proceedings. Further it is not improper to seek alternative remedies in relation to the separate legal relationships of director and employee, particularly in circumstances where neither jurisdiction could resolve the issues in the other. The creation of a right, which is done by the Commission if it makes an order under Part 3-2 of the FWA, does not involve the exercise of judicial power 4.

[40] As to the allegation that the unfair dismissal proceedings were used as a means of securing documents for deployment in the Supreme Court Proceedings, the Respondent’s own evidence quickly disposes of that assertion. On 22 October 2019, separate requests for documents were made in the unfair dismissal proceedings and the Supreme Court Proceedings. While those requests partially overlapped, they were not identical. It was clear that the Applicant had considered which documents were required in relation to each proceeding. The Applicant made their specific request in relation to the Supreme Court Proceedings.

[41] The Respondent’s submission regarding securing documents for deployment in the Supreme Court Proceedings also, improperly and without substance, alleges conduct that could constitute professional misconduct by a legal practitioner. Quite apart from any confidentiality undertakings, the inspection of documents produced upon compulsion carries with it an implied undertaking not to use the documents or information contained therein for purposes not directly connected with the conduct of the litigation 5, and to protect the confidentiality of the documents6.

[42] There was simply no evidence of any intention of improper deployment of documents. To the contrary, the Applicant separately sought documents in relation to the Supreme Court Proceedings.

(b) Without Reasonable Cause/No Reasonable Prospects of Success

[43] In Keep v Performance Automobiles Pty Ltd[2015] FWCFB 1956, the Full Bench of the Commission observed:

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). 4 Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) 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.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.

[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.”

[44] Quite clearly, the Applicant was actively contesting the allegations of misconduct at the time of making the Application, while also addressing issues of fairness and harshness. At the time of commencing the Application on 27 June 2019, after the termination on 14 June 2019, all that had occurred was:

(i) the Respondent had written to the Applicant on 8 May 2019, stating “our client is undertaking inquiries whether your client was engaged in serious unlawful conduct”;

(ii) the Respondent had written to the Applicant on 9 May 2019 stating “our client is currently investigating serious misconduct and possible illegal activity arising from your client’s management of Keco City. As soon as this investigation is complete our client will of course provide your client with full particluars of these allegations and provide him with adequate opportunity to respond”; and

(iii) correspondence took place between the lawyers for the Applicant and the Respondent as to the provision of a copy of an image taken of the Respondent’s laptop by the Applicant.

[45] In those circumstances it was unremarkable that the Applicant commenced the unfair dismissal proceedings, and expressed his case in the Application in the terms he used.I am not satisfied that the Application was made without reasonable cause in the sense that it was so obviously untenable that it could not possibly have succeeded. The fact that the Applicant instituted the proceedings but later discontinued them is not a matter to be taken directly into account. 7

(c) Unreasonable Act or Omission – s.400A

[46] In Matthew Gugiatti v SolarisCare Foundation Ltd⁸, the Full Bench of the Commission held:

“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.”

[47] By referring to a party who “unreasonably” fails to agree to terms of settlement, the legislature has adopted the standard of the reasonable person. Regarding a similar provision in predecessor legislation to the Act, a Full Bench of the Australian Industrial Relations Commission found⁹:

“A reasonable person, who is a party to proceedings pursuant to s.170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including:

•  the terms of the settlement offered in relation to the relief sought;

•  the relative strengths of the parties’ cases (and thus their relative prospects of success) in relation to both ‘liability’ and the relief sought;

•  any assessment of the merits in the certificate issued by the Commission pursuant to s.170CF(2);

•  the likely length and cost of proceeding to a hearing if the matter does not settle; and

•  any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be.

This list is not intended to be exhaustive. All of the circumstances are relevant and, as is made clear in the joint judgment in Blagojevch, there is no basis in the Act for giving primacy to any particular factor in every case.”

[48] There were two offers to settle proposed by the Respondent. The first offer was outlined in a letter of 5 August 2019, proposed that the Applicant discontinue the Application. The second offer, set out in a letter of 30 September 2019, proposed that the Applicant discontinue the Application and pay $25,071.00 to the Respondent on account of costs.

[49] Neither of the Respondent’s offers contained any element of compromise. Both offers required a total capitulation by the Applicant, and the second offer required payment by the Applicant of a substantial sum to the Respondent on account of costs in what is essentially a “no costs” jurisdiction. As Vice President Lawler observed in Abbey v Daycare Management Pty Ltd 10:

“a reasonable person approaching settlement does so on the basis that, by definition, settlement involves some compromise. It involves accepting less than the full remedy that is expected in the event of complete success in order to obtain certainty of outcome and to avoid the possibility of loss.”

[50] The Applicant also made two offers, with the most relevant for the purposes of considering the continuation the proceedings being that which fell between the Respondent’s two offers. That offer, dated 18 September 2019, involved payment to the Applicant of two weeks’ notice. That small offer was met twelve days later with the Respondent’s second offer of the Applicant discontinue the Application and pay $25,071.00 to the Respondent on account of costs. It is clear that the Applicant’s offer constituted a conciliatory position more reflective of remedies available in the unfair dismissal jurisdiction, and the availability of orders for costs in that jurisdiction.

[51] Insofar as the Respondent also submitted that the Applicant acted unreasonably by failing to discontinue the Application in the face of allegations of serious misconduct, I reject that submission. While the Respondent alleged misconduct, the Applicant denied misconduct. Without receiving and testing the evidence relied upon by each party it is not possible to make any findings regarding allegations of serious misconduct.

[52] The Applicant did not act unreasonably in rejecting either of the Respondent’s offers, or by failing to discontinue the Application before 21 November 2019.

Disposition

[53] The Costs Application dated 4 December 2019, is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716888>

 1   Harman v Secretary of State for the Home Dept. [1983] 1 AC 280.

 2 [1992] FCA 539 at [29]; 43 IR 257 at 264-265.

 3   [2013] FWCFB 1811, at [17].

 4   Re: Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union(1987) 163 CLR 656 at [28].

 5   Harman v Secretary of State for the Home Dept. [1983] 1 AC 280; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [16].

 6   Australian Security Commission v Ampolex Ltd (1995) 38 NSWLR 504.

 7   Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at P.257.

8 [2016] FWCFB 2478, at [43].

9 Brazilian Butterfly Pty Ltd v Alissia Charalambous (2006) 155 IR 36 at [43] and [44].

 10   (2004) PR946186, at [17].