Martie Skorsis v Printcess Pty Ltd

[2015] FWC 2382

[2015] FWC 2382

FAIR WORK COMMISSION

DECISION

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

Martie Skorsis
v
Printcess Pty Ltd
(U2014/1311)

VICE PRESIDENT WATSON MELBOURNE, 24 APRIL 2015

Application for costs - costs application not granted - Fair Work Act 2009 - s.394, s.400A, s. 402 and s.611.

Introduction

[1] This decision concerns an application for an order for costs by Printcess Pty Ltd (Printcess) in respect of an unfair dismissal application brought by Martie Skorsis pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Skorsis contended that her employment was terminated by Printcess on 4 April 2014. She filed an application for unfair dismissal with the Fair Work Commission (the Commission) on 17 April 2014. Printcess contended that Ms Skorsis was not an employee of the company and that she was engaged as an independent contractor. Therefore, it was first necessary for me to determine the threshold issue of whether the Commission had jurisdiction to determine Ms Skorsis’ unfair dismissal application.

[3] The matter was listed for hearing on 5 September 2014 but was adjourned on the application of Printcess because it had not been provided with all documents it sought in an order to produce. Printcess made an application for costs of the adjourned hearing. I indicated that I would reserve that question for a later date.

[4] The matter was subsequently heard on 24 October 2014 and at the conclusion of the hearing the parties were directed to file written closing submissions in relation to the matter. Written submissions were filed by Ms Skorsis on 28 November 2014 and by Printcess on 14 November and 10 December 2014. On 5 January 2015, I handed down a decision which concluded that Ms Skorsis was an independent contractor and that the application was dismissed for want of jurisdiction.

[5] On 17 February 2015, Printcess contacted my chambers to request that the application for costs arising from the adjournment of the matter on 5 September 2014 now be dealt with. It also said: “The Applicant also seeks the indulgence of the Commission to make an application for the costs of the entire proceeding.”

[6] As there are no contested facts in relation to the determination of the applications, I determined that the application for costs could be dealt with on the papers and the parties were given an opportunity to file written submissions in relation to the costs application.

[7] Throughout the proceedings, Printcess was represented by Logie-Smith Lanyon Lawyers. Ms Skorsis represented herself with the assistance of her sister, Ms S. Semmens, in the unfair dismissal application. Ms Skorsis later engaged Lander & Rogers Lawyers to represent her in relation to the costs application.

[8] Affidavits sworn by Printcess’ solicitor Kristopher Cook dated 5 March and 26 March 2015 have been filed. Written submissions on behalf of Printcess dated 5 March 2015 and 31 March 2015 have been filed on behalf of Printcess. Written submissions dated 12 March 2015 and 8 April 2015 have been filed on behalf of Ms Skorsis. The application for costs is made under s.611 and s.400A of the Act.

The Legislative Test

[9] The power to make an order for costs is dealt with in s.611 of the Act which provides:

“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.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[10] Section 400A provides:

    “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.”

[11] Section 402 provides:

    “402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.”

[12] It is well established that an order for costs is a discretionary matter when the basis for making a costs order is established. Section 611 contains a number of separate bases for granting an order for costs. An application has been held to be made without reasonable cause if it is so untenable that it cannot possibly succeed. 1

Has the application been made in accordance with the Act?

[13] The first issue that arises is whether Printcess has complied with the requirement in s.402 to make the application within 14 days of the determination of the matter. As detailed above there are two applications for costs. The first is in relation to the adjournment of the matter on 5 September 2014. That application was made on that day and is clearly within time.

[14] The second application was made 43 days after the jurisdictional matter was determined. Printcess submits that the matter was not determined then because there was an outstanding issue of costs of 5 September 2014. I reject that submission. The matter subject to the second costs application is the determination of the jurisdictional objection made by Printcess. The application for costs was not made within the statutory time frame. There is no jurisdiction to extend that time frame. The second application therefore cannot be considered.

Should an order for costs be made?

[15] This question only arises in relation to the first application. There is a history to the adjournment on 5 September 2014 which should be summarised. In July 2014 Printcess sought documents from Ms Skorsis regarding her financial affairs and other categories of documents it considered relevant to the proceedings. Ms Skorsis agreed to provide documents but out of concern for privacy and confidentiality sought to provide them to the Commission for safeguarding and secure access. Ultimately, on 2 September 2014 I made an order for the production of certain documents by 2.00pm on 4 September 2014. The documents were accessed that afternoon by Printcess’s solicitor but not able to be copied and removed.

[16] The matter came on for hearing on 5 September 2014. The jurisdictional matter was identified for initial consideration and Printcess was requested to commence its case in relation to that matter. Because its counsel wished to have an opportunity to review the material that had been produced by Ms Skorsis, Printcess sought a short adjournment of the matter. It then said that certain documents requested had not been provided and it needed additional documents before it was in a position to proceed. Ms Skorsis did not have her tax returns available because these were in the hands of her accountant and she had had difficulty contacting him in the time available as he was on holidays. Ms Skorsis opposed the adjournment of the matter.

[17] In granting Printcess’s adjournment application I said:

“In the circumstances I am disposed to adjourn the matter but I would do so on the basis that the parties embark immediately, as immediately on adjourning this morning, in discussions as to those matters with an effort to clarify the factual information that is sought and to make every effort to narrow the issues between the parties and minimise the time that would otherwise be taken in the hearing of this matter on those factual matters. I don’t propose to set an alternative hearing date at this stage. What I would ask is that by close of business next Tuesday 9 September each of the parties advise my associate as to the progress of the discussions and an estimate of the necessary time to complete investigations before the matter is heard. I will then propose to relist the matter with the benefit of that report back from the parties.”

[18] In all of the circumstances, I am not satisfied that Printcess has made out a case for an order for costs arising from the 5 September 2014 adjournment. Ms Skorsis has no experience in a matter of this type. She is a graphic designer. Her sister, who works in a Human Resources role, assisted her. The jurisdictional issue that arose required a very detailed consideration of all of the circumstances of the engagement including, ultimately Ms Skorsis’ financial affairs. I considered that Ms Skorsis conducted herself in a careful and prudent manner. I did not consider that she acted inappropriately in any way. She opposed the delay and was available for cross-examination into her financial affairs. Her failure to produce her tax return within the time was understandable.

[19] I find in the circumstances that Ms Skorsis did not engage in any unreasonable act or omission. Nor has it been made out that the matter was commenced vexatiously or without reasonable cause.

Conclusion

[20] For the above reasons the applications for an order for costs are dismissed.

VICE PRESIDENT WATSON

Final written submissions:

Printcess Pty Ltd on 5 March 2015.

Martie Skorsis on 12 March 2015.

Printcess Pty Ltd in reply on 31 March 2015.

Martie Skorsis in reply on 8 April 2015.

 1   General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

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