Khoder Abdulrahim v QBE Management Services Pty Limited

[2016] FWC 5631

[2016] FWC 5631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
ss.400A, 401 and 611—Costs

Khoder Abdulrahim
v
QBE Management Services Pty Limited
(U2016/2)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 AUGUST 2016

Application for costs - including indemnity costs - against the Costs Respondent and his legal representative.

[1] On 22 July 2016 the Fair Work Commission (the Commission) handed down its decision 1 regarding an application for costs made by QBE Management Services Pty Limited (QBE – the Costs Applicant) against Mr Khoder Abdulrahim (the Costs Respondent).

[2] In short, the Commission determined that an Order should be made pursuant to s.611(2)(b) of the Fair Work Act 2009 (the Act) that Mr Abdulrahim pay all of the costs, including disbursements, incurred by QBE in this matter on or after 20 April 2016. The decision further noted that as QBE’s itemised schedule of accounts set out in its costs application did not “identify, by an item number, each cost and disbursement claimed” as required by Regulation 3.08(4) of the Fair Work Regulations 2009 (the Regulations), Directions would be issued requiring QBE to submit an itemised schedule of costs which reflected my decision and complied with Reg 3.08(4). Those Directions were issued on 25 July 2016 and required QBE to provide the itemised cost schedule by no later than 4.00pm on 1 August 2016. QBE provided the required itemised cost schedule on 29 July 2016.

[3] The itemised cost schedule provided by QBE on 29 July 2016 included costs which were not included in its original costs application and sought costs totalling $39,046.52 inclusive of disbursements. On 2 August 2016 the Commission wrote to the Costs Applicant by email seeking further information in respect of a number of issues by close of business on 9 August 2016. The Costs Applicant responded on 2 August 2016. The Commission’s email was copied to the Costs Respondent and invited comment on the itemised costs schedule provided by QBE on 29 July 2016 and/or any of the issues raised by the Commission by close of business on 9 August 2016. The Costs Respondent provided no response.

[4] I have considered the itemised costs schedule and QBE’s response of 2 August 2016 and am of the view that it is not reasonable in the following respects:

• it seeks preparation time for the hearing totalling 13.1 hours for Solicitor A in a matter where the hearing was in the order of 5 hours duration – having regard to the complexity of the matter and the volume of evidentiary material produced by QBE I consider that preparation of time of 10 hours more appropriate (Item 1201 of Schedule 3.1 – Schedule of costs of the Regulations provides that “The FWC may allow an amount the FWC considers reasonable in the circumstances of the case”);



• I do not consider it appropriate to include in any order those costs which were not listed in the costs schedule attached QBE’s costs application other than where these costs were incurred as a direct result of actions of the Costs Respondent – such items total $334.00 and relate to emails on 19 and 30 May and 30 June 2016 and reviewing the Costs Respondent’s costs submissions on 30 June 2016 (both Solicitor A and B);



• I do not consider it appropriate to include the cost of flight change fees (Items 1403 and 1502 Schedule 3.1 – Schedule of costs of the Regulations provides that the charge in respect of these items is “An amount that the FWC considers reasonable …”); and



• I consider the accommodation and meal expenses claimed to be overly generous and have reduced these to $438.00 for both the solicitor who appeared with permission for QBE and his instructor (Items 1403 and 1502 Schedule 3.1 – Schedule of costs of the Regulations provides that the charge in respect of these items is “An amount that the FWC considers reasonable …” – I would add that the reduced amount equates to the Tier 1 rate determined by the Commonwealth Remuneration Tribunal for full-time office holders).

[5] Taking into account the above adjustments results in total costs of $24,928.50, comprised of costs totalling $20,752.10 incurred over the period 20 April 2016 up to and including 11 May 2016 (the day of the hearing), the abovementioned $334.00 relating to costs not included in the original costs application and disbursements of $3,842.40.

[6] For all the above reasons, I consider that an order for costs totalling $24,928.50 payable within 28 days of this decision is appropriate. An Order to that effect will be issued in conjunction with this Decision.

 1   [2016] FWC 4912

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