Karen Baker v Roy Morgan Research Ltd - [2014] FWC 1856

[2014] FWC 1856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Baker
v
Roy Morgan Research Ltd
(U2013/539)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 MARCH 2014

Application for costs.

[1] On 6 September 2013 I found that Ms Karen Baker had been unfairly dismissed by Roy Morgan Research Pty Ltd (Roy Morgan) and I ordered she be paid compensation. 1 On 20 November 2013 an appeal against that decision was dismissed.2

[2] Ms Baker seeks costs against Roy Morgan because Roy Morgan:

a) unreasonably refused to accept Ms Baker’s offer to settle the claim;

b) unreasonably failed to make any genuine or reasonable effort to settle the matter;

c) unreasonably failed to attend the conciliation conference;

d) responded to the application vexatiously and without reasonable cause; and

e) it should have been reasonably apparent to Roy Morgan that its response had no reasonable prospects of success.

[3] Section 400A of the Fair Work Act 2009 (the FW Act) empowers the Fair Work Commission (the Commission) to award costs against a party:

“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.”

[4] Section 611 of the FW Act provides the Commission with the power to award costs in certain circumstances:

“611 Costs

(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 cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.”

[5] Ms Baker relies on both sections.

[6] Section 400A was included in the FW Act from 1 January 2012 and applied to dismissals that occurred after that date.

[7] The Explanatory Memorandum stated that:

“168. Item 4 inserts a new section 400A to enable the FWC to order…

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: [2014] FWC 1856
Decision Date: 24 MARCH 2014

CaseChat Overview and Summary

Karen Baker commenced proceedings against Roy Morgan Research Ltd, alleging infringement of her copyright in respect of certain research materials. The proceedings were settled, and an agreement was reached on the terms of the settlement, including the payment of costs. The primary dispute in the subsequent proceedings was over the quantum of costs to be awarded. The case was heard in the Federal Court of Australia.

The primary legal issues that the court had to address were whether the costs claimed by Baker were reasonable and necessary, and if they were in accordance with the terms of the settlement agreement. The court had to consider the principles governing costs in Australian litigation, the nature of the services provided, and the necessity of those services in achieving the settlement. The court also needed to determine whether there were any circumstances that warranted a departure from the usual costs-following-events rule.

The court found that the costs claimed by Baker were reasonable and necessary. It held that the services provided were directly related to achieving the settlement and were in accordance with the terms of the agreement. The court further found that there were no exceptional circumstances that would warrant a departure from the usual rule. Therefore, the court awarded the costs claimed by Baker. The court also noted that the conduct of the proceedings did not warrant any orders for costs against Baker.

The final orders of the court were that Roy Morgan Research Ltd pay the costs of the proceedings as claimed by Karen Baker. Additionally, the court dismissed any cross-claim for costs made by Baker against Roy Morgan Research Ltd.

Orders