Miss Amanda Ross v KD Johns and Co Pty Ltd
[2014] FWC 1801
•26 MARCH 2014
[2014] FWC 1801 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Miss Amanda Ross
v
KD Johns & Co Pty Ltd
(U2013/6358)
COMMISSIONER WILLIAMS | PERTH, 26 MARCH 2014 |
Termination of employment - application for costs.
[1] On 19 August 2013, the Commission handed down the decision in the matter of Miss Amanda Ross v KD Johns & Co Pty Ltd [[2013] FWC 5374] (the Decision). The application by Miss Ross (the applicant) for an unfair dismissal remedy (the Application) was dismissed.
[2] KD Johns & Co Pty Ltd (therespondent) is now seeking an order that the applicant pay the respondent’s costs from 27 March 2013 pursuant to:
a) section 611(2)(a) of the Fair Work Act 2009 (the Act); and/or
b) section 611(2)(b) of the Act; and/or
c) section 400A of the Act.
[3] Further and in the alternative, the respondent seeks an order that the applicant’s lawyer pay the respondent’s costs from 27 March 2013 pursuant to section 401 the Act.
[4] The respondent is also seeking an order that indemnity costs be awarded in the first instance. Alternatively, if the respondent is not successful in seeking an order for indemnity costs, the respondent will be seeking costs in accordance with the Schedule of Costs filed with the application for costs and any further costs the respondent has incurred in making the application for costs.
[5] The applicant opposes the respondent’s application for costs.
The legislation
[6] The sections of the Act relevant in this matter are set out below:
“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.”
“401 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for an unfair dismissal remedy has been made under section 394; and
(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and
(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.
(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under this section 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.”
“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 of the 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).”
The Decision
[7] The relevant parts of the Decision are set out below:
“Consideration
[122] In this case there is a direct conflict between the two key witnesses Miss Ross and Mr Johns regarding the meeting of 23 January 2013.
[123] There is also a conflict between the evidence of Miss Ross and Ms Crowley as to their discussion on the morning of 24 January 2013 about the meeting between Miss Ross and Mr Johns the previous day.
[124] Some of the other evidence is inconclusive. Evidence in this category is the existence of various job applications Miss Ross had drafted. Whilst the existence of these is pointed to by the respondent in support of their position that Miss Ross was on the verge of leaving her employment which is consistent with her later decision to voluntarily resign in my view the existence of these applications is in no way determinative on this. There is no prohibition on employees whilst in employment actively seeking work elsewhere and in this case it was well understood that Miss Ross was likely to seek out a job in line with her studies at some point in the future. Miss Ross in any event explained each of these letters as being either drafts she didn’t send or were ones for positions that would not have required here to leave the respondent (e.g. internships), or were applications sent after 23 January 2013.
[125] Similarly the evidence of text messages, one sent by Ms Raso to the applicant asking if everything was okay immediately after Miss Ross had met with Mr Johns and the applicant’s reply that evening that “all was good now” are not helpful. This is because both Miss Ross and Mr Johns agree that during their discussion on 23 January 2013 Miss Ross at times became upset. This text exchange does not cast any light on the actual discussions between the applicant and Mr Johns in this private meeting.
[126] The other documentary evidence, including the emails sent by the applicant to other employees on 24 January 2013 explaining she had resigned and was feeling very positive about the future, the letter the applicant provided to Mr Johns notifying him that her last day would be Friday, 1 February 2013 (which ever version is considered) and the email sent by Mr Johns to all staff advising that Miss Ross was leaving to pursue roles in line with her studies are all consistent with the respondent’s position that the applicant voluntarily resigned. However of course they are also consistent with Miss Ross’s version of events, that these were all part of the pretence which Mr Johns proposed that she tell everyone she had resigned.
[127] The only documentary evidence that supports the applicant’s position is her own email late on Thursday, 31 January 2013 requesting that Mr Johns provide her with a letter indicating the nature of her “employment termination”. Mr Johns’ response however is equally supportive of his version of events.
[128] The fact that the applicant appeared to participate positively in a farewell morning tea and a farewell lunch and at no time suggested to any of the respondent’s staff that she had been dismissed by Mr Johns and that her departure was anything other than a voluntary resignation is consistent with the respondent’s position that the applicant voluntarily resigned but can also be seen as consistent with the applicant’s explanation of the agreed pretence Mr Johns suggested.
[129] In this application the onus rests on the applicant to demonstrate certain facts on the balance of probabilities. The first of these, and in this case the central question, being that her employment was terminated on the initiative of the employer. This is not a case, as is provided for in section 386(1) (b) of the Act, where an applicant agrees they resigned but argues their resignation was not voluntary but in fact was forced upon them because of the employer’s conduct.
[130] What is submitted on behalf of the applicant is that the termination of the employment relationship was the result of Mr Johns telling her she no longer had a position. The fact that she and Mr Johns agreed to publicly pretend that her dismissal was a resignation does not turn a dismissal at the employer’s initiative into a different legal character; it remains the case that the respondent dismissed the applicant.
[131] Considering the documentary evidence there is no hint in the applicant’s emails to other staff members whom she was friendly with that she was doing anything other than voluntarily resigning. In fact her emails to them go well beyond the minimum statements that would be necessary to maintain her and Mr Johns’ pretence, if it was the case that she was leaving reluctantly having been dismissed. Miss Ross accepts that she voluntarily typed and sent these emails to her friends and no one forced her to do so. Miss Ross also processed her own departure through the respondent’s payroll system including identifying the reason for termination as “...voluntary resignation”. Assumedly such detail in the payroll system is not readily available to other staff.
[132] There is no independent documentary evidence that supports the applicant’s position that she was terminated at the initiative of Mr Johns and her apparent resignation was merely a pretence. Miss Ross’s own email to Mr Johns on 31 January 2013 has little weight coming from the applicant herself and nearly a week after the 23 January 2013 discussion when it may be she was having second thoughts about her situation.
[133] Returning to the witness evidence, Mr Johns is an experienced Manager however in his evidence at times he was quick to speculate about events that were not within his knowledge in order to support his case or in order to criticise the applicant’s actions. This does not necessarily mean that Mr Johns was not being truthful in his evidence. His reactions in this way may be explained simply by the irritation he would be likely to feel if in fact the applicant had voluntarily resigned and was now pursuing this application which from his perspective would be groundless.
[134] Ms Crowley’s evidence importantly was that she and Mr Johns had discussed how to deal with the performance concerns they had with Miss Ross. Her evidence was that it was not the intention that Miss Ross be dismissed during the meeting that Mr Johns was to have with her.
[135] Ms Crowley’s evidence also was that the morning after Miss Ross had met with Mr Johns Miss Ross told her she was going to resign and follow a new career in communications. Ms Crowley’s evidence was that she understood that this was Miss Ross’s personal decision.
[136] Miss Ross’s evidence about this discussion was that she said to Ms Crowley that obviously Ms Crowley was aware of what was happening. In saying this Miss Ross clearly believed Ms Crowley was aware of what Mr Johns was going to discuss during the meeting with her the day before, or at least that Ms Crowley was aware of what had occurred. Miss Ross’s belief is consistent with the fact that Ms Crowley is a Director of the respondent.
[137] Consequently I am satisfied that if it was intended Mr Johns terminate the employment of Miss Ross during the 23 January 2013 meeting that Ms Crowley would have been aware of that in advance. Further if it was not the intention for Mr Johns to terminate Miss Ross’s employment during his discussion with her but this did in fact occur I believe it would be more likely than not that he would have advised Ms Crowley of this unplanned development. There is however no evidence that at any time Ms Crowley was aware that Mr Johns had terminated the employment of Miss Ross during their discussion on 23 January 2013.
[138] There is also no evidence that Ms Crowley was aware of the pretence that Miss Ross says Mr Johns had proposed during her meeting with him. It would be likely that Miss Ross would feel some discomfort or unease at times keeping up this pretence with the other staff throughout her last week of employment. Miss Ross shared an office with Ms Crowley and apart from Mr Johns Ms Crowley was the only person that Miss Ross, on her own evidence, believed was aware of what was really happening. There is no evidence that Miss Ross ever discussed or mentioned the pretence she was maintaining throughout this week to Ms Crowley.
[139] The onus is on Miss Ross to prove her case. The key evidence in support of Miss Ross’s case is her evidence regarding the discussions she had with Mr Johns during their meeting on 23 January 2013. The evidence of Miss Ross and Mr Johns are in direct conflict on whether he told her she no longer had a position, and so dismissed her, and then suggested she pretend she had resigned or whether he asked her to consider her future and then the following day she voluntarily notified him of her resignation.
[140] The evidence of Miss Ross is also in conflict with that of Ms Crowley as to whether the following day on 24 January 2013 Miss Ross told Ms Crowley she had resigned or not.
[141] All of the actions of Miss Ross from 24 January 2013 through to the end of her employment were consistent with her having voluntarily resigned.
[142] This is a difficult matter which is finely balanced given the limited evidence on the critical point.
[143] My conclusion is it is more likely than not that the evidence of Mr Johns and Ms Crowley about their discussions with Miss Ross on 23 and 24 January 2013 respectively is correct. I decline to accept Miss Ross’s contrary versions of both of those discussions.
[144] That being the case my finding is that during the meeting on 23 January 2013 between Mr Johns and Miss Ross, Mr Johns did not tell Miss Ross that she no longer had a position and so did not terminate the employment of Miss Ross. Rather I am satisfied that the discussion between them concluded with Miss Ross having an opportunity to consider her situation and deciding what she wanted to do and that the following day she voluntarily advised Mr Johns of the last day she would work and as such voluntarily resigned her employment.
[145] For completeness there is no evidence that demonstrates that Miss Ross was forced to resign because of the respondent’s conduct or course of conduct. In addition I accept that the following day Miss Ross, understanding that Ms Crowley was “...aware of what was happening” told Ms Crowley that she was going to resign.
[146] There was much debate between the parties regarding the existence of two different letters both of which Miss Ross agrees she drafted, both being letters to Mr Johns notifying him of her last date of work. In my view it is not important in this matter to determine which of these letters was provided by Miss Ross to Mr Johns given the wording was very similar in terms of the first paragraph which in both cases gave notice of Miss Ross’s final date of work.
[147] With respect to the effect of the letter, considered in the context of the discussion I have found Mr Johns had with Miss Ross the day before she handed it to him and in circumstances where Miss Ross had already explained to some other work colleagues she was going to resign the letter clearly was a resignation letter.
Conclusion
[148] Mr Johns is an experienced Manager. Miss Ross was a relatively junior employee and considerably younger than Mr Johns. The meeting on 23 January 2013 was at his initiative. Mr Johns raised the complaints he had about Miss Ross’s performance and it was he whom suggested that her real interests lay in a career elsewhere based around her studies. On his evidence, which I have accepted, he encouraged Miss Ross to reflect on her situation and her future and suggested he could assist her find a job elsewhere to further her career.
[149] Given his experience Mr Johns would appreciate that to resolve what he saw as the unsatisfactory situation with Miss Ross there were some advantages for the respondent in Miss Ross resigning rather than the alternative of him proceeding down a performance management path potentially resulting in dismissal. Given this context Mr Johns may have exaggerated the likelihood of Miss Ross being able to obtain a position elsewhere in line with her studies that would further her career and he may have exaggerated the extent to which he would be able to facilitate that. If that was the case Miss Ross may later have felt that Mr Johns manipulated her by encouraging her to believe that resigning was a better option for her than in reality it was. Reasonable minds may differ when considering Mr Johns’ actions however what occurred definitely fell well short of Mr Johns forcing Miss Ross to resign. The applicant’s resignation was not objectively the probable result of Mr Johns’ conduct. The applicant could quiet easily have advised Mr Johns she wished to stay on in her job and perhaps looked for other positions whist she remained there as she had been doing already.
[150] It may well be that Miss Ross having resigned and believing Mr Johns would help her get a position to advance her career based on her studies, later realised there was no guarantee of this and so became disillusioned with her decision as her departure date became imminent.
[151] Even if this characterisation of what occurred on 23 January 2013 and in the week following is correct that does not change the fact that Miss Ross had a choice to remain in her employment or to leave. I am satisfied Miss Ross chose to voluntarily resign her employment and indicated this by providing the letter to Mr Johns on 24 January 2013 notifying him of the date she wished to finish. Mr Johns did not terminate Miss Ross and the circumstances here do not amount to Miss Ross being forced to resign by the respondent’s conduct; she could have chosen to remain in employment if she wished.
[152] In conclusion I am not satisfied that the applicant was terminated at the initiative of the employer. Miss Ross was not dismissed by the respondent and as such is unable to make this application which will now be dismissed.” (References omitted)
Submissions by the respondent in favour of costs being ordered
Background - the substantive application and the security of costs application
[8] Following the filing of the respondents Form 3—Employer’s Response to Application for Unfair Dismissal Remedy which stated the applicant resigned from her employment and was not dismissed, on 27 March 2013, the respondent’s legal representative sent a detailed letter to Mr Tim Lethbridge of Kott Gunning, the applicant’s legal representative (Mr Lethbridge or the applicant’s lawyer)advising that the applicant’s application for an unfair dismissal remedy had no reasonable prospect of success because the applicant had resigned from her employment (Attachment B to the Application dated 30 August 2013).
[9] The letter also stated that the respondent may seek costs against both the applicant and the applicant’s lawyer if the matter proceeded. This put the applicant and the applicant’s lawyer on notice that the applicant’s claim had no reasonable prospect of success and that the respondent may seek costs against the applicant and the applicant’s lawyer.
[10] On 6 June 2013, the respondent filed a Form F4—Objection to Application for Unfair Dismissal Remedy objecting to the jurisdiction of the Commission to hear the matter because the applicant had resigned from her employment and was not dismissed.
[11] On 8 July 2013, the respondent filed a Form F5—Application for Security for Payment of Costs on the basis the Application had no reasonable prospect of success because she voluntary resigned from her employment, and was not dismissed by the respondent.
[12] On 16 July 2013, the respondent filed detailed witness statements and an outline of submissions for the substantive unfair dismissal claim.
[13] A security for the payment of costs hearing took place on 19 July 2013. Security for the payment of costs was not granted.
[14] On 19 August 2013, the parties attended a hearing to determine the application for an unfair dismissal remedy (the Hearing). The application was dismissed.
[15] On 30 August 2013, the respondent filed a Form F6—Application for Costs.
[16] On 19 July 2013, the Commission handed down a decision in Miss Amanda Ross v KD Johns & Co Pty Ltd [[2013] FWC 4835] (the Costs Decision). The Commission did not order security for the payment of costs and at paragraph [28] it was stated:
“The materials that have been filed in the substantive unfair dismissal application include the witness statement of Mr Johns and a witness statement of Miss Ross. Their evidence has not yet been tested in cross examination and because it is likely that findings about the conflicts in their evidence will be central to the determination of the substantive unfair dismissal application it is not appropriate for that to occur in the proceedings for this interlocutory application.”
[17] While the Commission did not order the applicant to make a payment of costs into the Commission, at paragraph [32] the following comment was made:
“...if in the determination of the unfair dismissal application I conclude on the contrary that Miss Ross’s version of her conversation with Mr Johns is not correct then the Commission is likely to conclude that she had voluntarily resigned and her unfair dismissal application will fail and should not have been pursued at all.”
[18] On 19 August 2013, the Decision was handed down rejecting the applicant’s application for unfair dismissal remedy and it was concluded that:
“(a) All of the actions of Miss Ross from 24 January 2013 through to the end of her employment were consistent with her having voluntarily resigned”: at paragraph [141].
“(b) My conclusion is it is more likely than not that the evidence of Mr Johns and Ms Crowley about their discussions with Miss Ross on 23 and 24 January 2013 respectively is correct. I decline to accept Miss Ross’ contrary versions of both of those discussions”: at paragraph [143].
“(c) With respect to the effect of the letter, considered in the context of the discussion I have found Mr Johns had with Miss Ross the day before she handed it to him and in circumstances where Miss Ross had already explained to some other work colleagues she was going to resign the letter clearly was a resignation letter”: at paragraph [147] (the respondent’s emphasis).
“(d) I am satisfied Miss Ross chose to voluntarily resign her employment and indicated this by providing the letter to Mr Johns on 24 January 2013 notifying him of the date she wished to finish. Mr Johns did not terminate Miss Ross and the circumstances here do not amount to Miss Ross being forced to resign by the respondent’s conduct; she could have chosen to remain in employment if she wished”: at paragraph [151].
[19] Further in respect of the testimony of the applicant, the Commission clarified at paragraph [61] “Miss Ross agrees that at no time during the meeting on 23 January 2013 did Mr Johns say that she was dismissed, or that she was terminated, or that she would be terminated if she did not resign.”
Costs under section 611 of the Act
[20] The Commission may order a person to bear some or all of the costs of another person in relation to an application to the Commission if the Commission is satisfied that the person made the application vexatiously or without reasonable cause pursuant to section 611(2)(a) Act.
Vexatiously
[21] A proceeding will be instituted ‘vexatiously’ where the predominant purpose in instituting the proceeding is to harass or embarrass the other party to gain a collateral advantage 1.
[22] The meaning of vexatious “...goes to the motive or intention of the party making the application.” 2
[23] In accordance with the respondent’s submissions at the Hearing (Transcript at PN1274 and PN1275) and as put to the applicant during cross-examination (Transcript of PN565 and PN566) it is the respondent’s submission that the applicant’s predominant purpose in instituting the proceeding was because she was aware that the respondent had discovered, or would discover, that she had overpaid herself in her role as Administration Supervisor and Personal Assistant.
[24] The respondent submits this demonstrates the applicant’s motive to gain a collateral advantage, thereby making the applicant’s claim vexatious.
Without reasonable cause
[25] To determine whether an application was brought without reasonable cause, the question to ask is whether upon the facts apparent to the applicant at the time of making an application, the applicant had no substantial prospect of success 3.
[26] The respondent submits the applicant was aware that her claim had no reasonable prospect of success and that she continued with the Application despite specifically being put on notice of that fact by the respondent.
[27] Further the respondent submits the applicant was encouraged to pursue her application (despite the fact it had no reasonable cause) because her mother worked at the applicant’s lawyer’s firm (Transcript at PN443 to PN444).
[28] The applicant on the basis the applicant made the claim vexatiously and/or without reasonable cause.
[29] The Commission may also order a person to bear some or all of the costs of another person in relation to an application to the Commission if the Commission is satisfied it should have been reasonably apparent to that person that their application had no reasonable prospect of success pursuant to section 611(2)(a) Act.
Reasonably apparent
[30] In the case of Walker v Mittagong Sands Pty Ltd (t/as Cowra Quartz) (the Walker case) [[2011] FWA 2225], Commissioner Thatcher at paragraph [43] held the term ‘reasonably apparent’ requires the Commission to undertake an objective analysis. This requires the Commission to form its own opinion as to whether it would have been apparent to a reasonable person in the position of the applicant that their application had no reasonable prospect of success.
[31] It has been held the requisite knowledge of whether an application had no reasonable prospect of success could be gained at the time the applicant received the respondent’s evidentiary material 4. The respondent submits a reasonable person in the position of the applicant would have determined that their application had no reasonable prospect of success upon receiving the employers response filed on 19 February 2013 and the letter of 27 March 2013. Alternatively, a reasonable person in the applicant’s position would have decided their claim had no reasonable prospect of success when they received the respondent’s witness statements and outline of submissions on 16 July 2013.
No reasonable prospect of success
[32] The principles defining ‘no reasonable prospect of success’ were outlined in the Walker case at paragraph [44] as follows:
a) The test is not about whether there is no ‘real’ prospect of success.
b) ‘No reasonable prospect of success’ does not require that the proceedings were hopeless or bound to fail.
c) The test is not whether an application was manifestly untenable or groundless.
[33] It should have been evident to the applicant on 27 March 2013 or at the latest 16 July 2013, that the weight of evidence did not support her claim.
[34] For these reasons, the respondent submits the applicant’s claim had no reasonable prospect of success from its inception or alternatively from 16 July 2013.
Costs under section 400A of the Act
[35] The Commission may make an order for costs against a party if the Commission is satisfied that the aforementioned party caused those costs to be incurred because of an unreasonable act or omission pursuant to section 400A Act.
[36] This section is wide enough to allow for a costs order to be made in circumstances where an applicant unreasonably refuses or fails to discontinue an unfair dismissal proceeding 5.
[37] For the reasons outlined above, the respondent submits the applicant acted unreasonably by pursuing her application in circumstances:
a) where the respondent had documentary evidence that the applicant had resigned and had not been dismissed; and/or
b) following receipt of the respondent’s legal representative’s letter to the applicant’s lawyer dated 27 March 2013, and/or
c) alternatively, following receipt of the respondent’s evidence and witness statements, on 16 July 2013.
[38] On this basis the respondent should be awarded costs pursuant to section 400A of the Act.
Costs under section 401 of the Act
[39] The Commission may award costs against a lawyer or paid agent engaged by a party in certain circumstances pursuant to section 401 Act.
[40] The respondent submits the jurisdictional prerequisites of section 401(1) of the Act have been met. The applicant’s lawyer sought leave to represent the applicant at the security for the payment of costs hearing on 19 July 2013, and leave was granted.
[41] Costs may be ordered against lawyers and paid agents pursuant to section 401(1A)(a) or (b) of the Act if the Commission is satisfied the representative caused those costs to be incurred because:
a) the representative encouraged the person to start, continue or respond to the matter, and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
[42] A lawyer or paid agent for a party will cause costs to be incurred by the other party by continuing a claim when it is not based on sound judgment, by failure to use available information, or through failing to do the required research 6.
[43] The respondent submits that the applicant’s lawyer’s judgement in this matter was impaired by the fact that the applicant’s mother worked for his firm. In relation to section 401(1A)(a) of the Act, the respondent submits the applicant’s lawyer encouraged the applicant to continue the Application when it should have been reasonably apparent the applicant had no reasonable prospect of success in the matter. Specifically:
a) after reviewing the applicant’s resignation letter and considering the surrounding circumstances of the resignation; alternatively
b) upon receiving the respondent’s lawyer’s letter dated 27 March 2013 and/or the respondent’s outline of submissions and witness statements on 16 July 2013, it should have been reasonably apparent to the applicant’s lawyer, after critically assessing the weight of evidence against the applicant, that the Application had no reasonable prospect of success.
[44] Further or in the alternative, the respondent submits pursuant to section 401(1A)(b) of the Act, the applicant’s lawyer caused these costs to be incurred because of an unreasonable act or omission in connection with the continuation of the matter. The unreasonable omission was the failure of the applicant’s lawyer to advise the applicant to discontinue the matter once he received the respondent’s witness statements and outline of submissions on 16 July 2013.
[45] For the reasons outlined above and on the basis the applicant’s lawyer assisted the applicant to continue the claim when it should have been reasonably apparent that the applicant’s claim had no reasonable prospect of success, the respondent is seeking costs against the applicant’s lawyer.
Indemnity Costs
[46] Indemnity costs may be awarded by the Commission in certain circumstances and in this instance the respondent is seeking indemnity costs against the applicant.
[47] The discretion to award indemnity costs will be enlivened when “...for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case” 7.
[48] For the reasons outlined above, the applicant was put on notice from a very early stage of proceedings that she was bringing ‘a hopeless case’; all of the respondent’s evidence clearly indicated the applicant resigned and her employment was not terminated by the respondent.
[49] The respondent submits that a reasonable person in the position of the applicant would have known that the Application had no reasonable prospect of success, particularly given that:
a) the onus was on the applicant to prove her case;
b) the applicant’s only evidence of decisive importance in support of her case is her evidence regarding the discussions she had with Mr Johns during their meeting on 23 January 2013;
c) the applicant’s critical evidence was in conflict with the evidence of both Mr Johns and Ms Crowley;
d) all of the actions of the applicant from 24 January 2013 through to the end of her employment were consistent with her having voluntarily resigned;
e) the applicant never asserted that she was forced to give her resignation letter to the respondent.
[50] Further, the respondent submits that, in assessing whether the prospects of success of an unfair dismissal application ‘should have been reasonably apparent’, the Commission should take into account the indirect findings of the Commission that are suggestive of the applicant’s dishonesty in bringing the application. The findings the Commission made were of sufficient character to indicate that it was of the view that the applicant knew she was not dismissed by Mr Johns during the meeting on 23 January 2013, that is, she acted dishonestly. Even though the Commission made no such explicit finding, it is submitted this costs application should be dealt with on the basis that a finding of that character has been made and is implicit in the Decision of 19 August 2013.
[51] The findings in the Decision that give rise to an implication that the applicant deliberately gave false evidence are as follows:
a) the direct conflict between the evidence of the two key witnesses, Miss Ross and Mr Johns, regarding the meeting of 23 January 2013 (paragraphs [122] and [139]);
b) the conflict between the evidence of Miss Ross and Ms Crowley as to their discussion on the morning of 24 January 2013 about the meeting between Miss Ross and Mr Johns the previous day (paragraphs [123] and [140]);
c) there is no hint in the applicant’s emails to other staff members whom she was friendly with that she was doing anything other than voluntarily resigning (paragraph [131]);
d) the applicant’s emails to her friends ‘go well beyond the minimum statements that would be necessary to maintain her and Mr Johns’ pretence, if it was the case that she was leaving reluctantly having been dismissed’ (paragraph [131]);
e) the applicant ‘voluntarily typed and sent these emails to her friends and no one forced her to do so’ (paragraph [131]);
f) the applicant ‘processed her own departure through the respondent’s payroll system including identifying the reason for termination as “...voluntary resignation” (paragraph [131]);
g) there is no independent documentary evidence that supports the applicant’s position that she was terminated at the initiative of Mr Johns and her apparent resignation was merely a pretence (paragraph [132]);
h) if Mr Johns had intended to dismiss the applicant during the 23 January 2013 meeting, Ms Crowley would have been aware of it, however Ms Crowley was not aware of any such intention (paragraph [138]);
i) all of the actions of Miss Ross from 24 January 2013 through to the end of her employment were consistent with her having voluntarily resigned (paragraph [141]);
j) more likely than not that the evidence of Mr Johns and Ms Crowley about their discussions with Miss Ross on 23 and 24 January 2013 respectively is correct (paragraph [143]);
k) during the meeting on 23 January 2013 between Mr Johns and Miss Ross, Mr Johns did not tell Miss Ross that she no longer had a position and so did not terminate the employment of Miss Ross (paragraph [144]);
l) the discussion between them concluded with Miss Ross having an opportunity to consider her situation and deciding what she wanted to do and that the following day she voluntarily advised Mr Johns of the last day she would work and as such voluntarily resigned her employment’ (paragraph [144]);
m) the letter the applicant handed to Mr Johns on 24 January 2013 ‘clearly was a resignation letter’ (paragraph [147]).
[52] In examining the conduct of the applicant, it is submitted the Commission should also take into account the following:
a) the applicant’s evidence that at no time during the meeting on 23 January 2013 did Mr Johns say that she was dismissed, or that she was terminated, or that she would be terminated if she did not resign (paragraph [61]);
b) the applicant’s conflicting evidence about the two different versions of the resignation letter (paragraphs [62] to [65]); and
c) the applicant’s supposed belief that she had voluntarily participated in a pretence to hide the true nature of her termination that she kept secret from everyone but Mr Johns for a week (paragraphs [17] and [138]);
d) the applicant’s refusal to participate in an investigation into allegation that she had deliberately overpaid herself (Transcript at PN574 to PN577).
[53] It is submitted that the probable motivation of the applicant was identified in the Decision at paragraph [150] of the Decision:
“It may well be that Miss Ross having resigned and believing Mr Johns would help her get a position to advance her career based on her studies, later realised there was no guarantee of this and so became disillusioned with her decision as her departure date became imminent.”
[54] It is submitted this is not a reasonable motivation for bringing an unfair dismissal claim.
[55] It is submitted that the conduct of the applicant, in its totality, is suggestive of dishonesty.
[56] The above objective examination of the applicant’s conduct indicates that she gave false evidence about the meeting of 23 January 2013. It is submitted that the applicant deliberately gave false evidence so that she could succeed in her unfair dismissal claim that was supported by no other evidence.
[57] In the absence of the acceptance of the applicant’s testimony regarding the meeting of 23 January 2013, the Application had no prospects of success. The applicant’s whole case relied upon her oral testimony and her credibility. However, the applicant’s whole case also relied on the Commission accepting the resignation was a sham in which she was the main actor. Accordingly, the applicant’s own case undermined her credibility. On an objective assessment, on the balance of probabilities, it should have been apparent to the applicant that this case had no reasonable prospect of success.
[58] The respondent submits that, in taking a cautious approach, and considering all of the circumstances of the case, including the indication the applicant deliberately gave false evidence, the Commission should be satisfied, on the balance of probabilities, that the application objectively had no reasonable prospects of success.
[59] The objective examination of the applicant’s conduct, and the indication the applicant gave false evidence, shows that this is not simply a case of the Commission favouring one version of events, on the balance of probabilities, over another.
Claim for costs against the applicant’s lawyer
[60] The respondent’s submission is that the applicant’s lawyer decision was not based on sound judgement. The respondent’s submission is not that the applicant’s lawyer engaged in professional misconduct, but is rather a proper application of the test in section 401(1A) of the Act.
[61] The respondent’s submission was based on evidence in the unfair dismissal hearing regarding:
a) the role of the applicant’s mother at the applicant’s lawyer’s law firm; and
b) the role of the applicant’s mother in persuading the applicant that she had been unfairly dismissed (Transcript at PN443 to PN448 and the statutory declaration of Diana Raso 8).
[62] That evidence gives rise to an inference that the reason the applicant’s lawyer encouraged the applicant to continue the Application when it had no reasonable prospect of success is that his judgement was impaired by his relationship with the applicant’s mother.
[63] For the above reasons costs should be awarded to the respondent.
Submissions by the applicant against costs being ordered
[64] The Commission in this matter dismissed the applicant’s substantive claim on the basis that it was not satisfied that the applicant had proven her case on the evidence. That is not the same as making a positive finding that the applicant was lying.
[65] The oral evidence presented to the Commission was consistent with all of the documentary evidence before the Commission. There were a number of serious problems identified with the evidence of the respondent. Had the applicant’s oral evidence been accepted, the applicant’s claim would almost certainly have been successful.
[66] There is nothing to suggest that that applicant’s claim was fundamentally flawed. This was simply a case of the Commission favouring one version of events, on the balance of probabilities, over the other.
[67] The respondent’s submissions are made, almost without exception, with no evidence in support.
[68] The respondent’s allegations against Mr Lethbridge, and the submissions made by its solicitors, are scandalous. The claim for costs should be dismissed and the respondent’s solicitors should be censured and ordered to pay Mr Lethbridge’s costs.
Claim for costs against the applicant
Vexatiously
[69] The respondent alleges that “the Applicant’s predominant purpose in instituting the proceeding was because she was aware that the Respondent had discovered, or would discover, that she had overpaid herself in her role...”. No evidence is led in support of this allegation.
[70] There was no finding made that the respondent overpaid herself. This has always been, and remains, a scandalous and unsubstantiated allegation repeatedly made by the respondent, without any proper evidence in support, and then relied upon as if already proven.
Without reasonable cause/reasonably apparent that the claim had no reasonable prospect of success
[71] The Commission at paragraph [142] of the Decision referred to the case as “a difficult matter which is finely balanced”. The claim was dismissed on the basis that the Commission was not satisfied that the applicant had proven her case on the evidence. That is not the same as making a positive finding that the applicant was lying.
[72] This distinction was highlighted by Cronin J in Charles & Charles 9:
“In respect of many findings of fact as in this case, a trial judge determines which of two versions, sometimes diametrically opposed to one another, he or she believes on the balance of probabilities. Such a finding is not necessarily a statement that one version is patently untrue or that a person is lying; it may simply be that one version is more probable than another For a court to be satisfied that a person knowingly made a false allegation or statement in the proceedings must mean that a court can be comfortable in finding that the person lied. It would not simply then be a balancing act between two versions.” (Emphasis added)
[73] The above decision was cited with approval in Prantage & Prantage 10, where Cronin J said of his own judgement:
“In Charles v Charles [2007] FamCA 276 I noted that the word “knowingly” required a finding that the person lied. The relevance of that is the distinction between a finding that a person has lied and one in which a determination is made about a particular incident on the balance of probabilities.”
[74] In the Costs Decision, the Commission at paragraph [31] was satisfied that it could not be properly said that the unfair dismissal proceedings lacked reasonable cause. It was noted that this was not a case where the applicant’s unfair dismissal application was always doomed to fail. It cannot be realistically contended that the applicant’s claim was ‘utterly hopeless’, nor that it had no reasonable prospect of success.
[75] The applicant’s oral evidence was not contradicted by any documentary evidence. There were real problems with the respondent’s evidence that were identified in the applicant’s closing submissions. Looking at the evidence and the submissions made by both parties, either result was possible. It therefore cannot be said that it should have been reasonably apparent to the applicant that her claim had no reasonable prospects of success, nor can it be said that it was brought without reasonable cause.
Claim for costs against Mr Lethbridge
[76] The allegations against Mr Lethbridge amount to allegations of professional misconduct. No evidence has been led in support of them. The making of such allegations without any evidence in support should result in a strong censure by the Commission accompanied by a costs order against the respondent’s solicitors.
Encouraged to start, continue or respond to the matter
[77] The respondent submits (at paragraph 50 of its submissions) that Mr Lethbridge “encouraged the Applicant to continue the application...”. No evidence has been produced in support of this allegation. The respondent submits (at paragraph 49 of its submissions) that Mr Lethbridge’s “judgement in this matter was impaired by the fact that the Applicant’s mother worked for his firm.” No evidence has been produced in support of this allegation.
[78] Whilst the Commission did dismiss the Application due to lack of jurisdiction, this was the result of a factual finding which could, on the face of the evidence and the submissions, have gone in favour of either the applicant or the respondent.
[79] There is no basis upon which it can be said that Mr Lethbridge demonstrated a lack of use of basic skills and fundamental legal principles usually employed by legal representatives.
No-costs jurisdiction
[80] The Commission is a no-costs jurisdiction. If the Commission were to make an order for costs in a case such as the present, a precedent would be set for costs to be allowed in all cases in which there is a dispute on the facts. The Commission would cease to be a no-costs jurisdiction by any reasonable definition.
[81] There are no exceptional circumstances where the court’s discretion to make orders as to costs is enlivened 11.
[82] The general rule stated in section 611(1) of the Act that each party bears its own costs must apply.
Principles
[83] A Full Bench of the Commission in E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [[2014] FWCFB 810] recently considered the meaning of section 611 of the Act in the context of an appeal matter and those observations, set out below, regarding the Commission’s cost jurisdiction are useful in the current matter. The Full Bench state:
“[21] Ascertaining the meaning of s.611 necessarily begins with the ordinary and grammatical meaning of the words used. These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.
[22] There are some similarities between s.611 and s.570 of the FW Act. Section 570 deals with the circumstances in which a party to proceedings in a court in relation to a matter arising under the FW Act may be ordered to pay costs incurred by another party to the proceedings. Section 570 states:
“570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”
[23] Given the similarities between ss 611 and 570, in particular the common use of the expression ‘vexatiously or without reasonable cause’, judgements which have construed s.570 and its legislative antecedents are relevant to our consideration of s.611.
[24] In Heidt v Chrysler Australia Ltd Northrop J said of s.197A of the Conciliation and Arbitration Act 1904 (Cth), a predecessor provision to s.570 of the FW Act;
“The policy of s.197A of the Act is clear. It is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties, defending proceedings which have been instituted vexatiously or without reasonable cause. This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.”
[25] The application of these observations to the construction of s.611 requires some qualification. Section 570 deals with the ordering of costs in court proceedings in relation to matters arising under the FW Act. In court proceedings the usual practice is that an order for costs follows the outcome of the substantive proceedings. As we have mentioned the Commission context is different. The Commission’s power to order costs only arises in the context of ss.376, 400A, 401, 611 and 780 of the FW Act. There is no general practice of cost following the event. Despite these differences the observations of Northrop J in Heidt are apposite to s.611.
[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:
2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.
[27] In the context of s.570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.
[28] We now turn to the exceptions to the general rule expressed in s.611(1) and the meaning of the expression ‘vexatiously or without reasonable cause’.
[29] The question of whether an application was made ‘vexatiously’ looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made ‘without reasonable cause’ and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust (Nilsen) North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously ‘where the predominant purpose ....is to harass or embarrass the other party, or to gain a collateral advantage’. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:
“The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously or unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.”
[30] We now turn to the expression ‘without reasonable cause’. A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union., Wilcox J put it this way:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
[31] In the context of an appeal the question becomes whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. As Wilcox CJ (with whom Madgwick J agreed) observed in Imogen Pty Ltd v Sangwin:
“The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If having regard to those matters, there was not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it would seem to me it cannot be fairly described as having been instituted ‘without reasonable cause’. This is so even if, in the result, the appeal proved unsuccessful.”
[32] In the same matter Ryan J said:
“The existence of ‘‘reasonable cause’’ within the meaning of s 347 falls to be determined at the time when the relevant proceedings were instituted. The fact that the party instituting the proceedings later discontinues them is therefore not a matter to be taken directly into account in the application of the section. However, an appeal stands in somewhat different case from proceedings at first instance in that discontinuance may bear indirectly on the discretion conferred by s 347 by tending to confirm an impression derived from the grounds of appeal and the reasons for judgment below that the prospects of success on the appeal were slight.
Not without significance to an assessment of the reasonableness of the institution of an appeal are the amount at issue and the nature of the points raised by the notice of appeal. Where, as here, the appeal is essentially against findings of fact made by the trial judge after a two day hearing resulting in a judgment for $16,900 and raises no important or distinctive point of law or principle, the Court may more readily conclude that it was not reasonable in the circumstances to have instituted it. On a fairly fine balance of the relevant considerations and not without hesitation, I have been led to reach that conclusion in this case and agree with the Chief Justice and the orders which he has proposed.”
[33] In construing s.570 and its legislative antecedents courts have observed that the test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgement, that is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.” (References omitted)
Consideration
Collateral Reason for the Application?
[84] The respondent has submitted that the applicant’s purpose in instituting the unfair dismissal remedy application was because she was aware the respondent had discovered, or would discover, she had overpaid herself.
[85] Evidence of the alleged overpayment was led in Mr Johns’ witness statement tendered in the Hearing 12.
[86] Mr Johns’ further evidence given in support of this costs application is that there is a police investigation into the applicant’s alleged overpayments which is ongoing.
[87] Considering these matters what is known is that the respondent has alleged that the applicant had knowingly overpaid herself during her employment and the police have been and are continuing to investigate these allegations.
[88] The outcome of those police investigations is however not known. The Commission does not know whether the applicant had overpaid herself during her employment or not.
[89] This very limited evidence is not in my view a sufficient basis on which the Commission should find that the collateral reason the respondent suggests above was the predominant reason for the applicant making her unfair dismissal remedy application to the Commission.
Applicant dishonest and gave false evidence?
[90] The Commission’s decision on the applicant’s unfair dismissal remedy application was that Miss Ross had not been dismissed at the initiative of the respondent. Based on this the respondent submits that Miss Ross always knew she had not been dismissed and so was dishonest from the outset in making the Application and that she gave false evidence about being dismissed by Mr Johns.
[91] The respondent submits that the Commission should draw this inference that Miss Ross was dishonest and gave false evidence from the whole of the circumstances here and relies on particular findings in the Decision in support of this argument.
[92] Central to the Decision at first instance was the private discussion between the applicant and Mr Johns on 23 January 2013. Obviously if the Commission had preferred the evidence of the applicant over that of Mr Johns regarding their discussion it is likely the Commission’s conclusion would have been that the applicant had been dismissed.
[93] With respect to drawing inferences as urged by the respondent it should not be overlooked that the Commission’s conclusion in the original decision was that much of the evidence about surrounding events was consistent with both the applicant’s and the respondent’s version of events 13 and so these were in effect neutral factors when considering whether Miss Ross had been dismissed or had resigned.
[94] As the applicant’s Counsel points out the finding that it was more likely than not that the evidence of Mr Johns and Ms Crowley about their discussions with Miss Ross was correct 14 is not a finding by the Commission that Miss Ross gave false evidence or was dishonest.
[95] I accept that the conclusion that Miss Ross was dishonest and gave false evidence is one possible explanation for the conflicts between her evidence and that of the other witnesses. But this is not the only explanation for this conflict.
[96] Relevantly the evidence of Miss Ross under cross examination regarding the critical meeting with Mr Johns on 23 January 2012 15 was that:
- Her recollection of what was said was sketchy and she could not remember every word.
- She was unclear about what Mr Johns was getting at.
- Mr Johns did not say the words dismissed or terminated and the fact he didn’t say these words confused her.
- She did understand he had terminated her employment.
- Mr Johns confirmed she did not have a position.
- Her emotions were running riot during the meeting which made it difficult to remember word for word what was said.
[97] Regarding this critical conversation between Miss Ross and Mr Johns on 23 January 2012 there was also evidence that the conversation took some time. Miss Ross’s evidence was it lasted about 30 minutes. It is clear that a number of different but interrelated issues were canvassed by Mr Johns in that time. Miss Ross’s evidence was at one point she was “trying to get her head around” what Mr Johns was saying to her. Both Mr Johns and Miss Ross agreed that she became upset during their meeting. There was some evidence Miss Ross was crying after the meeting.
[98] These circumstances in which the meeting occurred and the evidence above of Miss Ross under cross examination do suggest a number of possible explanations for the conflict in evidence regarding what was said at this meeting. Perhaps Miss Ross had been confused or misunderstood what Mr Johns was saying to her or perhaps her emotional state affected the accuracy of her memory of what was said but that in either case her beliefs concerning these discussions were honestly held. These alternate explanations are of course speculative but arguably are as plausible as the respondent’s explanation that Miss Ross was dishonest and gave false evidence. This is particularly so when it is remembered that Miss Ross’s subsequent actions were largely consistent with either version of this discussion.
[99] It is established principle that the strength of the evidence necessary to establish an alleged fact on the balance of probabilities will be greater where the allegation is serious in nature or may, if established, lead to grave consequences.Consequently whilst the Commission is not bound by the rules of evidence the Commission is more likely to apply the rules of evidence, or the principles underlying those rules, in such situations.
[100] The allegation that Miss Ross the applicant was dishonest and gave false evidence is serious and may have grave consequences.
[101] A costs order will be rare and the Commission’s power should be exercised with caution and only in a clear case. The Commission should not engage in conjecture or guess work as to the explanation for the differences in the witness evidence. The respondent has not presented any direct evidence that Miss Ross was dishonest or gave false evidence. In this case there are other plausible explanations for a particular conflict in witness evidence so I am not satisfied there is evidence of sufficient strength to support the serious allegation that the applicant was dishonest in making the Application and gave false evidence.
Vexatious, without reasonable cause or no reasonable prospect of success?
[102] My conclusion above regarding Miss Ross’s honesty and evidence also means that I do not accept there is evidence to safely support a conclusion Miss Ross made the Application vexatiously or without reasonable cause nor that it should have been reasonably apparent that the Application had no reasonable prospect of success nor that the applicant caused the respondent to incur costs because of her unreasonable act or omission.
The applicant’s lawyer
[103] In support of its application that the applicant’s lawyer should be ordered to pay the respondent’s costs the respondent relies on the fact that the applicant’s mother was employed by the same firm which represented her in the various proceedings. The respondent submits this fact influenced the lawyer representing the applicant and so proper judgement was not exercised as it should have been and the applicant was not properly advised that this case should not be pursued.
[104] The only evidence before the Commission regarding this issue is that the applicant’s mother did indeed work at the same law firm which represented the applicant and at some point prior to making the Application the applicant’s mother suggested that she get some legal advice on her situation.
[105] There is nothing in this limited evidence that supports the respondent’s application for costs against the applicant’s lawyers. The respondent has failed to provide any evidence or submission that supports any finding that would warrant the Commission ordering the applicant’s lawyers to pay any costs under section 401 of the Act.
[106] Given my conclusions above there is no basis to consider the respondent’s submissions on indemnity costs.
[107] The respondent’s application that costs should be awarded is dismissed.
COMMISSIONER
Appearances:
M Saraceni of Counsel for the applicant and the applicant’s lawyer.
C Boyle, representative for the respondent.
Hearing details:
2014.
Perth:
January 14
1 [2011] FWA 5656 at paragraph [51]; (1997) 76 IR 180 at page 181; (1988) 14 NSWLR 481 at paragraph [491]
2 [2011] FWA 5656 paragraph [51]; [2002] FCA 1406 at paragraph [83].
3 (1992) 43 IR 257 at page 264; [2011] FWA 5656 at paragraph [48]
4 [2013] FWC 7613 at paragraph [12]
5 [2013] FWC 4280 at paragraph [28]
6 [2012] FWA 10682 at paragraph [52]
7 [2012] FWA 10164 at paragraph [26]; (1993) 46 IR 301 at paragraph [303]
8 Exhibit R3
9 [2007] FamCA 276 at paragraph [24]
10 [2012] FamCA 661 at paragraph [18]
11 [2012] FWAFB 6508
12 Exhibit R1
13 [2013] FWC 5374 at [126]
14 Ibid., at paragraph [143]
15 Transcript at PN415 to PN428
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