Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green v Martha Blair
[2011] FWA 4816
•25 JULY 2011
[2011] FWA 4816 |
|
DECISION |
Fair Work Act 2009
s.611 - Application for costs
Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green
v
Martha Blair
(U2011/4588)
COMMISSIONER GOOLEY | MELBOURNE, 25 JULY 2011 |
Application for costs.
[1] This is an application made pursuant to section 611 of the Fair Work Act 2009 (FW Act) by Kim Bainbridge Legal Service Pty Ltd (“KM”) for costs against Ms Martha Blair in relation to her unsuccessful application for an unfair dismissal remedy. In my decision of 10 May 2011 I determined that Ms Blair had not been unfairly dismissed by KM and therefore dismissed her application. 1
[2] Mr Dominic Calabro appeared for KM and an affidavit of Mr Kim Bainbridge was tendered and Mr Bainbridge was cross examined. Ms Blair represented herself.
The power to award costs
[3] The power to award costs is discretionary. The presumption of the FW Act is that each party bear his or her own costs.
[4] Section 611 of the FW Act provides as follows:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.”
[5] KM submitted that costs should be ordered because “it should have been reasonably apparent to Ms Blair that there was no basis for her application as she was not dismissed for the purposes of section 386 of the FW Act. 2 KM submitted a schedule of costs totalling $7796 which included the costs associated with the costs application.
[6] It was not suggested that the application was made vexatiously. The matter to be determined is whether the application was made without reasonable cause or whether it should have been reasonably apparent to Ms Blair that her application had no reasonable prospect of success.
[7] Justice North in Nilsen v Loyal Orange Trust 3 considered the approach to be taken to the awarding of costs where a party institutes proceedings vexatiously or without reasonable cause. I adopt the approach outlined by His Honour.
[8] I do not accept that Ms Blair instituted this proceeding without reasonable cause. I do not consider that on Ms Blair’s own version of the facts it was clear that the proceeding must fail and therefore the proceeding did not lack a reasonable cause.
[9] In A Baker v Salva Resources Pty Ltd 4 the Full Bench provided a useful summary of the approach to be taken to section 611(2)(b) of the FW Act and I adopt that approach:
“[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:
• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”
[10] In its submissions KM sought to rely on its unsuccessful attempts to settle this application. However it is clear that the FW Act no longer provides for the awarding of costs because one party does not respond to an offer of settlement.
[11] It was KM’s submission that Ms Blair should have been aware, from its submissions and the position adopted by it at the conciliation conference, that KM considered Ms Blair’s claim misconstrued and ill founded because she had resigned from her employment.
[12] Ms Blair submitted that no order for costs should be made. In her submissions she stated that she had received advice from Job Watch Australia, consulted Employee Assist, had a lawyer review her case and studied the Fair Work Australia website and previous unfair dismissal applications. She submitted she was advised that she had a case. 5 No objection was taken to Ms Blair’s submissions.
[13] Ms Blair objected to KM’s reliance on what was said in settlement discussions as she properly contended that such discussions were without prejudice. Mr Bainbridge in cross examination explained that the “offer” by Ms Blair was conveyed to him by the conciliator after the conciliation conference had been completed. He therefore took the view that the offer was no longer a without prejudice offer. I do not consider that the timing of the provision of this information from the conciliator made the offer an open offer.
[14] Ms Blair further submitted that the costs claimed were excessive.
[15] In Ms Blair’s submissions she stated that Employee Assist were not willing to take her matter to hearing on a no win no fee basis. KM submitted that this was evidence that Ms Blair was told by Employee Assist that she had no reasonable prospects of success. There is no basis for this conclusion.
[16] In this matter Mr Bainbridge had advised Ms Blair of the need to reduce her salary in January 2011. Whilst I found that there was no decision by Mr Bainbridge at this time about what the new rate of pay would be, I found that Ms Blair’s decision to resign was premature because she still had the opportunity to discuss this issue with Mr Bainbridge.
[17] I found that this situation arose from a misunderstanding on Ms Blair’s part. The evidence established that Ms Blair formed the view, albeit mistaken, that she had no option but to accept a reduction in pay or to resign her employment.
[18] I accept that Ms Blair took advice on her claim and given that advice, I find that it would not have been reasonably apparent to her that her case was manifestly untenable, groundless or not reasonably arguable.
[19] The application for costs in relation to the decision at first instance and the costs application is dismissed.
COMMISSIONER
Appearances:
Mr D Calabro for the Applicant
Ms M Blair for herself.
Hearing details:
2011.
Melbourne.
July 20.
1 Martha Blair v Kim Bainbridge Legal Service Pty Ltd [2011] FWA 2720
2 Application filed with Fair Work Australia on19 May 2011.
3 Unreported, Industrial Relations Court of Australia, 11 September 1997, Decision No:267/97
4 [2011] FWAFB 4014
5 Exhibit M1 at [2]
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