Lisa Holland - [2011] FWA 8012

[2011] FWA 8012

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Lisa Holland
(U2010/6622)

Tony Holland

(U2010/6623)

Nude Pty Ltd t/a Nude Delicafe

COMMISSIONER ASBURY

BRISBANE, 25 NOVEMBER 2011

Application for costs.

Background

[1] This is an application under s.611 of the Fair Work Act 2009 (the Act), by Nude Pty Ltd t/a Nude Delicafe for an award of costs against Mr Tony Holland and Ms Lisa Holland (the Applicants) in relation to their respective applications for an unfair dismissal remedy. The application for costs is made on the grounds that:

● The unfair dismissal applications were made vexatiously (s.611(2)(a)); or

● It should have been reasonably apparent to each Applicant that their applications had no reasonable prospect of success (s.611(2)(b)).

[2] In Directions made on 2 July 2010, the unfair dismissal applications were listed for hearing in Maroochydore on 26 August 2010. At approximately 4.45 pm on 25 August 2010, Mr Fuhrman-Luck, the Applicants’ representative, telephoned my Chambers to advise that the applications were to be discontinued. Given the time and the manner in which this information was received, my Associate contacted the representative for Nude Pty Ltd, Ms Aitken, to inform her about the proposed discontinuance, and was advised that instructions from Nude Pty Ltd would be sought in relation to an application for costs.

[3] In circumstances where a formal notice of discontinuance had not been received; the Maroochydore Court House was booked; the parties were located at the Sunshine Coast; and an application for costs had been foreshadowed; the listing for 10.00 am on 26 August 2010 was maintained. An application by Nude Pty Ltd for costs was made orally by Counsel for Nude Pty Ltd at the commencement of the hearing on 26 August 2010. When it became apparent that the Applicants’ representative was not in a position to defend an oral costs application, it was withdrawn and it was indicated that an application for costs would be made in the usual manner and served upon the Applicants. Directions were made for material in relation to the costs application to be filed and served, and the matter was adjourned at 11.43 am on 26 August 2010. Notices of discontinuance in relation to each of the unfair dismissal applications were not filed until 8.35 pm on 26 August 2010. An application for costs was made by Nude Pty Ltd on 8 September 2010.

[4] All parties sought to call evidence in relation to the costs application and each party indicated that witnesses for the other party would be required for cross-examination. Due to issues associated with the availability of parties the costs application was heard on 2 February 2011,and final material was received from the parties subsequent to that hearing.

Legislation

[5] Section 611 of the Act provides:

“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…

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: [2011] FWA 8012
Decision Date: 25 NOVEMBER 2011

CaseChat Overview and Summary

The case involved Lisa Holland as the applicant, seeking costs from the respondent, a company involved in an employment dispute. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant, Ms Holland, had previously brought a claim against her employer, which was dismissed, and was now seeking an order for costs pursuant to section 11 of the Federal Circuit and Family Court of Australia (Costs) Regulations 1984.

The court needed to determine whether the applicant's claim was frivolous or vexatious, which would render her liable for the respondent's costs under the regulations. The primary consideration was whether there was a serious question to be tried and if the applicant had acted unreasonably in pursuing the claim. The court examined the evidence and submissions to assess the seriousness of the applicant's case and the reasonableness of her actions.

The court found that the applicant's claim was not frivolous or vexatious. While the claim was ultimately unsuccessful, there was a serious question to be tried, and the applicant's decision to pursue the matter was not unreasonable. The court held that the applicant was not liable for the respondent's costs. Consequently, the application for costs was dismissed.

The court's final order was that the applicant, Lisa Holland, was not liable to pay the costs of the respondent and that the application for costs was dismissed.

Orders