Miss Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet

[2013] FWC 9246

[2013] FWC 9246

FAIR WORK COMMISSION

DECISION

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

Miss Jill Lambert
v
Jetscape Travel Pty Ltd T/A Travelscene/ByoJet
(U2012/14467)

COMMISSIONER SPENCER BRISBANE, 18 DECEMBER 2013

Application in relation to costs.

[1] This decision relates to an application for costs, filed on 25 June 2013, made by Miss Jill Lambert (the Applicant), pursuant to s.611 of the Fair Work Act 2009 (the Act). The Applicant seeks an order that Jetscape Travel Pty Ltd t/a Travelscene/BYO Jet (the Respondent) bear some or all of the Applicant’s costs in relation to her application made pursuant to s.394 of the Act.

[2] Directions were issued to the parties to file submissions and material in the application.

[3] The Respondent initially requested a Hearing in this matter but, after much correspondence between the parties and the Commission, withdrew the request for Hearing and confirmed that the Respondent was content for the application to proceed on the papers. The Applicant was also of the view that the matter should be determined on the papers.

[4] Given the long history of this matter and after a consideration of the material and the issues in dispute, it was considered appropriate to determine the matter on the papers.

[5] While not all of the submissions and evidence are referred to in this decision, all of such have been considered.

Background

[6] It is necessary to set out some of the detail relating to the history of this matter. This matter has now been the subject of three decisions and one order of the Fair Work Commission (the Commission), as presently constituted.

[7] The Applicant filed an application, pursuant to s.394 of the Act, on 18 October 2012. The Applicant alleged that her dismissal from the Respondent was harsh, unjust or unreasonable. The Applicant was represented throughout proceedings by Mr Andrew See, of Counsel. The Respondent was represented by Mr Tony Gray, of Counsel.

[8] The matter was conciliated before a Fair Work Commission Conciliator on 12 November 2012 but was not able to be resolved. The matter was referred for arbitration to the Commission as presently constituted.

[9] Correspondence was sent to the parties on 3 December 2012 from the Commission requesting the parties’ views as to a further conciliation conference before the Commission. The Applicant accepted this offer for further conciliation. The matter was listed for further conciliation on 17 December 2012.

[10] The Respondent, after receiving the listing in this matter, requested an adjournment on the basis that relevant personnel were not available to attend at the listed time. Various commitments on the part of the Applicant’s representative also meant that the Applicant sought a relisting in the matter. The matter was relisted for 21 January 2013 for further conciliation.

[11] The Respondent raised some issues with attending at the Commission for an in-person conference. Relevantly, and following further correspondence between the parties and the Commission, the Respondent replied on 13 January 2013 where it stated:

“I understand Mr See would like us to attend so as to cause us as much disruption as possible in the hope of a nuisance settlement.

Our stance has not changed since the last conciliation meeting. We believe we have always treated and paid Jill fairly and there was no unfair dismissal, we intend defending both of the two separate claims made against us by Jill. As such we do not believe that anything will be achieved at his meeting.

At the last meeting we agreed to a public tribunal hearing in Febuary where we will be represented by council. This has not changed and we still intend proceeding with the tribunal hearing and will not be offering any settlement offer on either of the two claims made by Jill and Mr see.” (errors in original)

[12] Given the matters raised by the Respondent the Commission sought the Applicant’s views as to persisting with the conciliation conference or whether Directions should issue and the matter proceed to formal Hearing.

[13] On 15 January 2013 the Applicant’s representative responded:

“On the basis that it is understood that the Respondent does not believe that there is anything to be achieved at the scheduled conciliation conference and that it “still intends proceeding with the tribunal hearing” and will not be offering any settlement offer to my client, it is the view of my client that the matter should be brought before the tribunal for its urgent adjudication.

The Applicant suggests that a trial date of no more than two days be set and that Directions be issued in order to facilitate the most cost effective means for progressing this matter.”

[14] Later, on 15 January 2013, the Commission received correspondence from Australasian Lawyers and Consultants advising they were representing the Respondent and seeking that the matter be set down for Hearing.

[15] The Commission provided the Respondent’s representative with the correspondence (extracted at [13] above). The Respondent’s representative was also prompted to file a formalnotice of representative commencing to act in accordance with the Fair Work Australia Rules 2010 (the Rules). The Respondent’s representative replied:

“...we agree that the matter should be allocated dates for hearing. On our instructions, we believe that the matter could take as long as five (5) days and our Counsel has requested 8-12 April, 2013 please.”

[16] At this time the Commission confirmed that given the views of the parties the conciliation listing would be vacated. The Commission requested that Counsel for the Applicant and Respondent confer as to a proposed directions timetable and specifications for the listing of the Hearing. Counsel were requested to correspond with the Commission with the consent position, if reached, by no later than 23 January 2013.

[17] On 23 January 2013 the Respondent’s representative corresponded with the Commission to the effect that there had been difficulty with both Counsel being available to hold discussions as to a consent position. The Commission granted Counsel a further period of time to reach a consent position.

[18] However, despite this additional period to confer, Counsel were not able to agree on a proposed course. After further correspondence between the representatives, correspondence to which the Commission was included, the Applicant’s representative responded:

“I do not agree that discussions had broken down, there were none following the Commission allowing the Respondent additional time as it had requested.  

My client was terminated in October and requests that the matter be now brought on for determination as soon as possible, 

My client asks that wherever possible this tribunal consider ways of allowing for the determination of this matter, at the least possible cost to my client, particularly given her financial situation. 

My client would now ask that Directions be issued to commence the substantive hearing of this matter, whether on the papers or otherwise.” 

[19] Mr Tony Gray, Counsel for the Respondent replied:

“My client remains open to further communique to help narrow or resolve the issues to be determined.”

[20] It appears from the correspondence that Counsel for the Applicant considered that a Hearing of no more than 2 days duration would be necessary in the matter whereas Counsel for the Respondent was seeking at least more than 3 days but possibly, 5 days hearing time.

[21] Given the inability of Counsel to agree on a proposed course the Commission listed the matter for 3 days and issued Directions, dated 29 January 2013.

[22] During the course of submissions, the Respondent’s representatives filed material and corresponded with the Commission as follows:

“Having had the benefit of the Applicant’s material and further consultation with our client’s representatives and Counsel, we consider that it may be unnecessary now to call the remainder of staff regarding the alleged unfavourable announcement supporting the proposition that the Applicant was terminated for not going to New Zealand. If the Applicant continues to press that matter, then there are a minimum for four other witnesses to be called to say that the announcement was simply that the Applicant would not be working for the company anymore in New Zealand or Australia. She was not terminated for that. She had already resigned and could not, because her position was already filled unfortunately, be offered more than a few days further work. She declined.

Our client, however, considers that this material should be unnecessary; and objects to the Affidavit of Mr. Avila on the same basis; and because what he says is irrelevant to the Applicant’s claim in our respectful submission.

In the circumstances, the hearing may now be shortened by at least 1 day.”

[23] Mr See, for the Applicant, responded that he was not willing to engage in advocating his client’s position over email.

[24] Again, after further correspondence between the parties and the Commission, Counsel for the Respondent, by way of correspondence of 21 March 2013, raised various matters concerning the Applicant’s evidentiary case. Mr See, for the Applicant, also on 21 March 2013, responded that these matters would be addressed at the Hearing in the matter and further:

“We reserve our rights to further rely on this conduct (and that previously giving rise to the delay in the proceeding of this matter) in any costs application that we will ultimately make in the tribunal, should my client be successful in its application.”

[25] Mr Gray for the Respondent responded on 22 March 2013 as follows:

“Noted with thanks Sir.

No delay intended or wanted, seeking to avoid it and unnecessary impost for all actually.”

[26] The matter was listed for Hearing on 3, 4 and 5 March 2013. The matter adjourned just prior to 5pm on the 3rd of March as the evidentiary case, for both the Applicant and Respondent had concluded. The two remaining days of Hearing were vacated. By agreement with the parties the Commissioner issued Directions for final closing submissions to be made in writing, with the benefit of transcript.

[27] Final closing submissions were filed by both parties.

[28] The Commission issued a decision on 21 June 2013 1 (the substantive decision) finding that:

‘Taking into account all of the facts and circumstances, the Applicant’s employment was terminated, there was no valid reason for the dismissal and the manner of dismissal was procedurally deficient.” 2

[29] In relation to whether there was a valid reason for the dismissal the Commission relevantly stated, at [99] to [100]:

“On the evidence before the Commission, the Applicant’s employment was terminated in response to her rejection of the New Zealand offer. There was no valid reason for dismissal. While the Respondent was no doubt inconvenienced by the Applicant’s refusal to accept the offer of employment in New Zealand, the circumstances are such that the Respondent was not entirely clear with the Applicant as to the elements of the offer. The evidence of the Applicant is supported; that there was some inconsistency between the Respondent’s managers as to what the position and the exact terms of that position were. The Applicant clearly rejected the offer of 11 October 2012 by email on 13 October 2012. The Respondent did not put any further amended offer to the Applicant in writing to address her concerns.

The Respondent’s annoyance at the Applicant’s refusal does not provide a valid reason to dismiss the Applicant.”

[30] Various findings were also made in relation to those procedural matters prescribed by ss.387(b) to (e) of the Act. 3

[31] It is also important to note that in the conclusion of the substantive decision the Commission noted the following:

“It is noted that the Respondent, in passing, in their closing submissions purported to make an application for the matter to be dismissed pursuant to s.399A of the Act. The Respondent further purported to make an application for an order for costs, on an indemnity basis, pursuant to s.400A of the Act.

The Respondent has not specified which part, or on what basis, the application should be dismissed pursuant to s.399A of the Act. Regardless, it is in the ordinary course inappropriate to, in closing submissions, make such applications for a matter to be dismissed after the parties have spent significant time in filing the materials and time in hearing in the determination of the matter. Accordingly, reference to such applications from the bar table, without a proper application, pursuant to s.399A, have not been given consideration.

In so far as the Respondent has purported to apply for a costs order pursuant to s.400A of the Act it is relevant that the Commission may only make an order pursuant to s.400A(1) if a party has applied “in accordance” with s.402 of the Act. Section 402 of the Act requires that an application for costs under s.400A must be made within 14 days “after” the Commission determines the matter or the matter is discontinued. As neither of those events had occurred at the time the Respondent purported to make an application pursuant to s.400A it must be determined that the Respondent has not applied “in accordance” with s.402 of the Act and that therefore the Commission is not obliged to consider such.” 4

[32] After generally considering those matters pertaining to remedy, the Commission stated:

“Though the parties have provided some submissions regarding remedy, these are not sufficient for the Commission to consider the elements set out in s.392 of the Act at this time, in particular as there is an absence of evidence regarding the considerations under s.392(e) and (f). Accordingly, the parties are directed to file short submissions in relation to the provisions of s.392 only. Directions will issue with this decision. The remedy decision will follow.” 5

[33] In accordance with the closing remarks of the substantive decision, Directions, in relation to remedy, were issued on 21 June 2013.

[34] In the interim, on 25 June 2013, the Applicant filed the current application for costs.

[35] On 25 June 2013 the Applicant filed further submissions and evidentiary material in response to the remedy Directions of 21 June 2013. The Respondent filed submissions in response to the remedy Directions on 5 July 2013. The Applicant filed a final reply on 10 July 2013.

[36] The Commission issued a decision on 25 July 2013 6 (the remedy decision) finding that an amount of compensation equal to five months of the Applicant’s ordinary gross earnings was to be paid by the Respondent. The Applicant was ordered to confirm the dollar figure of the equivalent ordinary time earnings.

[37] Following receipt of the Applicant’s ordinary time earnings the Commission, on 26 July 2013, issued an order 7 (the compensation order), requiring the Respondent to pay to the Applicant, as compensation in lieu of reinstatement, an amount of $21,250.00. The compensation order required the amount to be paid within 21 days of the date of the order (ie by approximately 16 August 2013).

[38] On 30 July 2013 the Commission issued Directions in relation to the Applicant’s costs application, filed 25 July 2013.

[39] On 31 July 2013 the Respondent’s representative corresponded with the Commission as follows:

“We have received your decision and conferred with our client.

Our client respectfully requests more time to pay please?

Would you please allow 3 equal calendar monthly instalments commencing 28 August, 2013 please?”

[40] The Commission sought the Applicant’s view as to the Respondent’s request, to which the Applicant’s representative confirmed that the Applicant would not consent to any variation to the compensation order.

[41] The Commission, also on 31 July 2013, provided this response to the Respondent’s representatives and stated:

“...the Applicant has not consented to the Respondent’s request.

The Commissioner notes that no formal application to amend the Order has been filed. If the Respondent intends to file such application, with appropriate material in support, the Commissioner will consider the application at that time.”

[42] On 13 August 2013 the Applicant filed submissions and an affidavit in support of this costs application and the Directions of 30 July 2013.

[43] On 20 August 2013, the Respondent filed a Form F1 application seeking an order pursuant to s.608 of the Act (although the application of 20 August 2013 incorrectly referred to s.608 of the Rules). The grounds for such application were stated to be “[P]ursuant to Section 393 the FWC may permit an employer to pay [an] amount required by instalments”.

[44] No further grounds, submissions or material in support of the application were filed at this time.

[45] As a result of this application to amend, the Applicant filed supplementary submissions in the costs application.

[46] On 22 August 2013, the Associate to the Commission contacted the Respondent’s representative by telephone to query whether the application, filed 20 August 2013, was all the material that the Respondent intended to rely in the application to amend. The Respondent’s representative sought instructions and responded:

“...We are happy for what follows to be put in an Affidavit and sworn by Lenny Padowitz if required. However, in the interests of a quick response and as Ms Lambert has chosen to simply make allegations via submission, we ask permission to respond as follows.

Having received the objection from Ms. Lambert's via her Counsel, that our client has not disclosed information relating to BYOjet Pty. Ltd., we are instructed as follows:

1. The employing entity is Jetescape travel trading as BYOjet;

2. The figures provided are correct and those which are relevant to the consideration of our client's application;

3. BYOjet Pty. Ltd. was incorporated to open an new office in Darwin, which is not yet stand alone or profitable;

4. The figures of that office have already been taken into account in the demonstrably poor, but improving financial position of the Business overall;

5. The submission to the contrary is without foundation, as is, respectfully, the ongoing "allegation" about adverse conduct;

6. It is simply not that case that our client is a big or successful employer trying to take advantage of Ms. Lambert in any respect;

7. Our client is simply doing the best it can in these most unfortunate circumstances, which have had a significant adverse effect on the business, financially and in terms of morale;

8. It is germane that Ms. Lambert has been represented by Counsel from the outset of this matter. She did not obtain legal assistance because of anything, which our client did or did not do; as he already had it;

9. On our instructions, it was her having been represented in a highly provocative and aggressive way, which lead to escalation of the matter, compelling our client to seek representation; and

10. Moreover, the Applicant's position was that she wanted 12 months compensation, so that there was not choice but to contest the matter.

We have asked Counsel to complete submissions for our client regarding the Costs Application, but we feel the need to respond in this way, because the submission on behalf of Ms. Lambert is that our client's Application for payment over a brief period of instalments, is sinister or mischievous in same way. It simply is not; and rather than making sensational allegations without any evidence, we would through you please Commissioner, thank Ms. Lambert's Legal team to kindly make strong but fair and factual submissions instead.”

[47] In response to this correspondence, of the Respondent’s representative, the Commission advised parties that, in the interests of avoiding further costs, the Commission would consider the application to vary the order on the basis of the material presently before the Commission.

[48] On 27 August 2013 the Respondent filed an affidavit in response to the application for costs and, separately, submissions in response.

[49] On 30 August 2013 the Applicant filed submissions in reply, in relation to the application for costs, and a further affidavit of the Applicant.

[50] The Commission issued a further decision, in relation to the application to vary the compensation order, on 30 August 2013 8 dismissing the application to vary the order. The Commission declined to vary the order, principally because the application being made was an application for the compensation order to be made by instalments - a matter which the Commission considered ought to appropriately have been raised in the substantive matter or further in relation to remedy directions.9

[51] The Commission also considered that the evidentiary basis relied upon by the Respondent in seeking that the order be by way of instalments was not persuasive. 10

[52] On 6 September 2013 the Respondent’s representative sought that a Hearing should be convened in relation to the costs application. The Respondent did not set out any reason for which the Hearing was required, or why a Hearing was the most efficient way of dealing with the costs application, despite the fact that parties were directed to do so by the costs Directions of 30 July 2013.

[53] The Applicant’s representative advised, also on 6 September 2013, that it was the Applicant’s view that it was not necessary to convene a Hearing in relation to the costs application.

[54] After receiving the Applicant’s correspondence the Commission corresponded with both parties and advised:

“Direction [3] of the Directions of 30 July 2013 directed that either party was at liberty to request a hearing in the matter but that any such request “must include the grounds upon which the request is made and brief submissions as to why a Hearing is the most efficient way of dealing with the application”.

The Commissioner is in receipt of the Respondent’s request below. The request does not comply with the Direction as it does not state the grounds upon which a hearing is sought or provided brief submissions as to why a Hearing is the most efficient way of dealing with the application.

The Commissioner directs that if the Respondent presses their request for a hearing they must comply with the Direction by no later than 3pm today.

After receipt of the further correspondence the Commissioner will consider the request for a Hearing. If no further material is received the Commissioner will consider the request on the basis of the material presently before the Commission.” (emphasis in original)

[55] On Monday, 9 September 2013 the Respondent’s representative responded, pressing the application for a Hearing in the costs application.

[56] The Commission listed the matter for 19 September 2013 for final Hearing in this matter. The Respondent sought an adjournment of this date.

[57] Following this request the Commission corresponded with the parties as follows:

“The Commissioner notes that Directions, in the costs matter, were issued on 30 July 2013. The Directions relevantly directed the Respondent to file and serve:

(a) Submissions in response to the Applicant’s costs application; and

(b) Affidavits for each of the witnesses the Respondent intends rely upon.

The Respondent filed, on 27 August 2013, an affidavit of Mr M Padowitz stated to be “affidavit in response on the application for costs”. Submissions “on the application for costs” were subsequently also filed by Counsel for the Respondent on that day.

Given that the Applicant is the Applicant in the costs matter it is the ordinary course that the Applicant has the final right of reply not the Respondent.

The Respondent’s request in relation to a hearing now appears to be for the purpose of introducing further evidence-in-chief of the Respondent’s witnesses and further submissions. The Commission has already issued Directions in this matter and the material filed in accordance with those Directions should constitute all of the Respondent’s evidence-in-chief and reply to the Applicant’s application.

The Commissioner is concerned that a further hearing in this matter, and potentially the further introduction of evidence by the Respondent at that hearing & outside of the Directions already set, may prejudice the Applicant and may require a further adjournment and therefore possibly delay the matter further.

The Commissioner is cancelling the current listing and allowing the Respondent a further opportunity to file any further material that they require, with a further reply, if required, by the Applicant. Once this is received the Commissioner will then consider whether to decide the matter on the papers or if a Hearing is required.”

[58] Counsel for the Respondent replied:

“The hearing was not sought by the Respondent for the purposes of introducing further evidence in chief. Rather, on my advice, the Respondent wishes to test before the Commissioner; and rebut as may be necessary, certain evidence of the Applicant regarding this application for costs. There are 4-5 brief, but important matters, raised on the papers; about which, I would like to cross-examine the Applicant; and make certain submissions arising therefrom and any re-examination. Respectfully, I do not believe that this can properly or fairly be done in another round of Affidavits.  However, it could easily be done in a very short hearing (perhaps an hour only); and rather than elongate or complicate matters for the Commission, the Respondent is only seeking to refine what has already been put forward, which should assist the Commission to finally resolve the matter.“

[59] In light of the clarification from Mr Gray the Commission cancelled the further costs Directions issued on 9 September 2013 and sought to relist the matter for Hearing.

[60] Further correspondence ensued between the parties, essentially going to the Respondent’s position of the evidentiary weaknesses in the Applicant’s case as to the quantum of costs.

[61] On 7 October 2013, the Applicant filed an amended “cost calculations”.

[62] There was further correspondence between the parties and the Commission with the result that an order to attend was issued, at the request of the Applicant, to the Respondent’s Solicitor. This order was later revoked.

[63] On 15 October 2013 the Respondent’s representative corresponded with the Applicant and the Commission as follows:

“However, on behalf of our client, we respectfully request copies of ALL documents not already in evidence, upon which Ms. Lambert relies, before the hearing please, as we do not wish to be surprised in this regard.”

[64] Mr See, on behalf of the Applicant, also on 15 October 2013 responded:

“Again for the sake of clarity

We will not be relying on any further documents pertaining to the quantification of costs, so there will not be any surprises at the day of hearing.”

[65] The matter was adjourned, again, until 15 November 2013 to enable the Applicant’s representative to appear in person.

[66] The Respondent subsequently applied for an order to produce, directed to the Applicant, to produce material that the applicant relied upon in support of her quantum of costs. This order sought, again, that the Applicant produce:

“ALL documents not already in evidence, upon which [the Applicant] wishes to rely in support of her Application for costs.”

[67] The Commission again corresponded with all parties and, in respect of the application for an order to produce, stated:

“The application made by the Applicant seeks an Order that the Respondent pay the costs of the Applicant in the substantive application. The ordinary course is that the Commission will consider the preliminary matter of whether an Order for costs should issue. Any taxation of those costs, in terms of a specific quantification, would then be referred to a Member of the Commission with responsibility for such. In that context the Commissioner does not consider that these documents are required in assessing whether or not an order should issue.”

[68] The Applicant’s representative also confirmed that the documents already filed in relation to the costs application, were the documents sought to be relied upon by the Applicant in the costs application.

[69] Mr Gray for the Respondent replied as follows:

“My Learned Friend seems to be saying that the Applicant (Ms. Lambert) does not intend to rely on any other documents relating to her Application for costs; but this suggests that there are other documents which have not been produced?  This is why the Respondent's Application was made.  If there are other documents; then, in our respectful submission, these ought to have been produced before now.  If there are no other documents; then the Respondent and the Commission are entitled to know that categorically.  The Respondent would just like to know if there is anything else or not with certainty please.

The Commission has raised the matter of quantum as separate.  However, the Applicant's claim is for a specific sum; and without knowing, what (if any) documents have not been produced; the Respondent and the Commission cannot be certain as to whether they relate to quantum, liability or both.  Respectfully, the simplest solution is for the Applicant to say immediately and finally, whether there are any other documents to put before the Commission in support of the Application, or not please.  If yes; these document should be produced as my Instructing Solicitors have asked please.  If not, that resolves this aspect of the matter.”

[70] The Commission, on the basis of Mr Gray’s correspondence, requested that the Applicant’s representative confirm whether there were any other documents to put before the Commission in relation to the application.

[71] On 13 November 2013, the Respondent filed further final submissions in relation to the costs application. Mr Gray also confirmed that it was the Respondent’s view that a hearing was no longer required and sought for the matter to be determined on the papers, subject to the Commission’s requirements in the matter.

[72] The Applicant’s representative confirmed that the Applicant was content to proceed on this basis.

[73] The Hearing was vacated accordingly.

Relevant legislation

[74] The Applicant’s application has been made pursuant to s.611 of the Act which provides as follows:

“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).”

[75] The Applicant has sought to rely on both limbs of s.611(2) of the Act.

[76] Section 402 of the Act sets out procedural matters pertaining to an application pursuant to s.611 of the Act as follows:

“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.”

Summary of Applicant submissions and evidence

[77] Given the number of further and amended submissions filed by the Applicant in this matter it is beneficial to consider each set of filed submissions in turn.

Submissions of 13 August 2013

[78] The Applicant referred the Commission to s.3 of the Act which provides the objects of the Act. Specifically the Applicant referred to s.3(e) of the Act which states:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

...

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and”

[79] The Applicant submitted that the matter has resulted in the expenditure of some $15,000 (later amended) in legal fees. The Applicant submitted that this amount was expended in order to “access and achieve [the Applicant’s] rights at law...that should have been well understood by the Respondent and its lawyers after a very short analysis of the law”.

[80] In terms of s.611 of the Act the Applicant submitted that the Respondent “never” had any reasonable prospect of success. The Applicant also submitted that the Respondent’s position as to the Applicant’s alleged casual status would have been clarified by a review of the relevant legislation.

[81] The Applicant submitted that the Respondent’s position changed where, during cross-examination, one of the Respondent witnesses conceded that had the Applicant declined the position in New Zealand (a contentious issue in the substantive matter) then the Respondent would have to “accommodate” the Applicant at the current place of work.

[82] The Applicant referred the Commission to the decision in Ranieri v BioGiene Pty Ltd 11 where it was submitted that Commissioner McKenna held that the Respondent’s response in that matter was vexatious or without reasonable cause and appeared to be for the purpose or on the premise of harassing and embarrassing the Applicant. This was found, by McKenna C, as some collateral advantage, on behalf of the Respondent, in the proceedings by portraying the Applicant, in that matter, in a bad light.

[83] The Applicant submitted that the Respondent in this matter, essentially, unreasonably refused to resolve the matter.

[84] The Applicant also referred the Commission to, what the Applicant called, the alteration, on the morning of trial, of the number of witnesses, amendments to affidavits and withdrawal of affidavits by the Respondent. Specifically the Applicant referred the Commission to the facts, set out above, of the Respondent’s position of a 3 to 5 day hearing and, on the first day of hearing, amending that position to one day.

[85] The Applicant submitted that it should have been “abundantly clear” to the Respondent that the case had no reasonable prospects of success. Principally this was so because, as was at issue during the trial, the Respondent was under the misapprehension that the Applicant was casual and had no rights in relation to an unfair dismissal remedy.

[86] The Applicant further submitted that the Respondent’s insistence on the matter being listed for 3-5 days resulted in the matter being delayed by some months. This was primarily so because the availability of parties and the Commission to accommodate such a lengthy Hearing was limited.

[87] The Applicant also filed in her affidavit a copy of an email from the Respondent’s representatives, dated 15 January 2013, inviting the Applicant to withdraw her application on the basis of each party bearing their own costs. This correspondence did not make any offer in settlement of the application.

Further submissions of 21 August 2013

[88] The Applicant confirmed, by way of the submissions of 21 August 2013 that the Respondent had yet to comply with the compensation order.

[89] The Applicant further relied upon the Respondent’s conduct in applying to amend the order. This was, in the Applicant’s submission, conduct that “typified the behaviour” of the Respondent in the matter.

Further submissions in reply of 30 August 2013

[90] The Applicant further advised that the Respondent had partly complied with the compensation order but that the majority of the order remained unsatisfied.

[91] The Applicant advanced further submissions, which related to the application to amend which was, later that day, dismissed. The Applicant submitted that this was the Respondent pulling “another stunt”.

[92] The Applicant submitted that the position of the Applicant was clear, well before trial and that this position should have seriously been considered by the Respondent.

[93] This submission somewhat intertwines with the submissions as to the order to amend and the financial viability of the Respondent’s enterprise. However, the Applicant did submit that at that time, the compensation order had not been complied with and that an application to amend was filed after the date for compliance had passed and showed a “general disregard that the Respondent had to the law and its legal obligations”. The Applicant went further and submitted that this placed an “ongoing burden on the Applicant that [was] clearly designed to frustrate and be oppressive”.

[94] The Applicant submitted, in response to the Respondent’s submissions in the costs application, that she did not seek 12 months wages and entitlements in the substantive application. In this regard the Applicant annexed to her affidavit. This email includes an offer to settle from the Respondent of 2 months wages. This was rejected by the Applicant on the basis of a counter offer of 4 months wages (as well as costs) and an indication that if the matter proceeded beyond April then 6 months would be sought.

[95] On 7 October 2013 the Applicant filed an amended application for costs to amend the quantum of costs to $12,305.00.

Summary of Respondent’s submission

[96] The Respondent conceded that the procedural matters raised by s.402 of the Act were satisfied in this matter.

[97] The Respondent submitted that the starting point, pursuant to s.611 of the Act, is that each party bears their own costs in relation to a matter before the Commission.

[98] The Respondent submitted that s.400A of the Act was relevant. Section 400A of the Act 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.”

[99] The Respondent submitted that this section “adds an element of causation” by the inclusion of an “unreasonable act or omission” by the party against who the costs are sought.

[100] The Respondent submitted that the Applicant’s submissions accept that costs should be ordered only if there is some exceptional matter in what the Respondent did, or did not do.

[101] The Respondent further submitted that it has correctly not sought costs in this matter on the basis that “both parties had the right to contest the issues between them at hearing”. It should however, be recalled that the Respondent did seek costs at the Hearing of this matter and by way of final submissions. 12

[102] The Respondent submitted that costs do not follow the event within the Commission’s jurisdiction. It is for the Applicant to establish an entitlement to costs within the scheme of the Act.

[103] In relation to the Applicant’s submission regarding the response to the application being “unreasonable or vexatious” the Respondent submitted that the Applicant has failed to adduce evidence as to the “alleged mala fides” that the Applicant submits are evident in the Respondent’s conduct in this matter.

[104] The Respondent submitted that the evidence at the hearing was “clear”; a dispute between the parties existed and was adjudicated upon by the Commission. The Respondent submitted that there was nothing in the response which added to the costs of the Applicant. The Respondent submitted that despite the response being unsuccessful; it was reasonably defended by the Respondent.

[105] The Respondent submitted that the nature of the offers exchanged between the parties prior to the arbitrated outcome was significant. The Respondent submitted that the Applicant had not made an offer to settle consistent with what was eventually awarded. The Respondent stated that the Applicant offered, and continued to press an offer, for 12 months wages and entitlements. On the other hand the Respondent stated that the Respondent did offer to compromise at an amount which was not “a lot” less than was eventually awarded.

[106] The Respondent submitted that the Applicant has maintained that she was “forced” to obtain legal representation because of the Respondent’s conduct. However, as the Respondent submitted, the Applicant had been represented throughout these proceedings whereas the Respondent only obtained representation post-conciliation, which the Respondent submitted was due to the Applicant’s aggressive pursuit against them. In the Respondent’s submissions it was the Applicant’s conduct which necessitated legal representation being sought.

[107] The Respondent referred the Commission to the decision of M.Sakurmovski and Advertising Distribution Services (Aust) Pty Ltd 13 (Sakurmovski) which considered matters commenced “without reasonable cause”.

[108] The Respondent also submitted, in reliance upon Sakurmovski, that it cannot be said that the Respondent initiated or maintained their response vexatiously. The Respondent submitted that the only fact the Applicant could maintain, was a failure to settle, a fact that was met in the face of the Applicant’s unwillingness to consider a “reasonable settlement”.

[109] The Respondent submitted that the evidence of the parties was not found to be dishonest or without credibility.

[110] The Respondent made further submissions in the alternative should the Commission issue an order for costs. These submissions essentially go to the assessment or taxation of costs of the Applicant.

Consideration

[111] The starting point in this matter, is that established by s.611(1) of the Act: the Applicant and the Respondent must “bear [their] own costs in relation to” this matter before the Commission, however, the Commission may order costs against one party in very limited and defined circumstances.

[112] The Commission may only award costs, as a matter of discretion, where the matter was commenced, or the response was vexatious or without reasonable cause, or with no reasonable prospects of success. The Applicant in this matter relies upon both grounds. The Applicant has not applied for a costs order against the Respondent’s legal representatives.

[113] In considering an application for costs the Commission must primarily consider whether there is power to award costs, and, if yes, consider whether the power to award costs is appropriately exercised in all the circumstances of the matter. 14

[114] As Northrop J said in Heidt v Chrysler Australia Ltd 15 in relation to an early predecessor of the Commission’s costs power:

“Great care must be exercised to ensure that in finding that a party has instituted proceedings vexatiously or without reasonable cause, that party is not improperly deprived of his freedom from liability to pay costs to an opposing party. The test is a substantial one.” 16

[115] It is desirable to deal with each limb of the application separately.

Vexatious

[116] Vexatious, in the sense used in s.611 of the Act, requires a party to prove that the main purpose of the application or response was to harass, annoy or embarrass the other party or that there was some collateral purpose in the matter other than settlement of the issues arising in the application. 17 The question goes to the motive of the party, against whom a costs order is sought.

[117] The Applicant has not clearly articulated the basis of her claim in this regard. It is understood that the Applicant alleges that the Respondent engaged in a “course of conduct” in this matter that enlivens the costs power. 18 Part of the reliance on the conduct of the Respondent, as alleged by the Applicant, is that the Respondent’s conduct was designed to delay proceedings at all stages. The Applicant also alleged that the conduct of the “Respondent was of such a nature, that any reasonable legal representative, should have assisted in the speedy resolution of the matter.”19

[118] The Applicant relied upon the decision of Ranieri 20 to support the proposition that the Respondent’s “changed position” during the course of the Hearing in the substantive application, put the Applicant to extra cost. In respect of this “changed position” the Applicant referred the Commission to a concession made by one of the Respondent’s witnesses during trial.21 However, having reviewed this portion of the transcript, which ultimately formed part of the substantive decision,22 it cannot be characterised as a “changed position”. It was a concession made by a Respondent witness during vigorous cross-examination on the issues. These matters are not irregular, in the course of proceedings.

[119] The Applicant has not clearly established that the Respondent “responded to the application” with any collateral purpose in the matter.

[120] The Applicant has not submitted that the purpose of the response was to harass, annoy or embarrass the Applicant. The conduct of the Respondent in the carriage of its case, cannot, on the balance of probabilities, be characterised in the manner that the Applicant submits, relevant to the award of costs.

Without reasonable cause

[121] The test for ‘without reasonable cause’ has been referred to as:

‘so obviously untenable that is cannot possibly succeed’;

‘manifestly groundless’;

‘so manifestly faulty that it does not admit of argument’;

‘discloses a case which the Court is satisfied cannot succeed’; and

‘under no possibility can there be a good cause of action’ 23

[122] In the matter of R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia 24 Gibbs J said, at 473:

“...a party cannot be said to have commenced a proceeding ‘without reasonable cause’, within the meaning of that section, simply because his argument proves unsuccessful.”

[123] Both parties brought arguable cases before the Commission. The submissions and evidence, in respect of ss.394 of the Act, were considered against the tests in s.287 of the Act, and this was not a case that fell away against the legislative criteria in ss.611(2)(a) and (b) of the Act.

[124] The Applicant has not established, and the Commission is not satisfied on the balance of probabilities, that the Respondent’s response to the application was ‘without reasonable cause’. This is particularly so given the ‘substantial’ test that must be applied, and the ‘great care’ with which, the Commission must approach the award of costs. 25 Simply because the Respondent’s argument was unsuccessful is not sufficient to justify the award of costs on the basis of a response being made ‘without reasonable cause’.

No reasonable prospect of success

[125] The test of ‘no reasonable prospect of success’ is an objective one 26 and should be approached with caution and should only be reached when an application, or response as is the case in this matter, is ‘manifestly, untenable or groundless’27.

[126] The parties submissions in relation to the legislative tests of ss.611(2)(a) and (b) have been considered.

[127] The Applicant has not established, and the Commission is not satisfied on the balance of probabilities, that the Respondent’s response had no reasonable prospect of success. The matter required a consideration of the submissions and evidence of both parties as a whole and was not manifestly, untenable or groundless. The Respondent held the view that the Applicant had accepted an alternate position. The fact that this view was erroneous is not enough to satisfy the Commission’s costs jurisdiction.

Conclusion

[128] In the final event, the Respondent’s entire evidentiary case in the substantive proceedings was concluded in less than 2 hours. The majority of time, on the only day of Hearing, was spent in cross-examining the Applicant.

[129] However, the Applicant has not applied, pursuant to s.401 of the Act, in relation to costs orders against lawyers and paid agents. The Applicant’s submissions primarily complain of, what is understood as, allegations of unreasonable acts or omissions on the part of the Respondent or the Respondent’s representatives in this matter; by either allegedly delaying proceedings or failing to settle the matter. The questions for determination, in this costs application, are those matter prescribed by s.611 of the Act.

[130] The Respondent’s reliance upon s.400A of the Act as adding an element of causation to those matters identified in s.611(2) of the Act is misconceived. The two limbs of s.611(2) of the Act operate independently of s.400A of the Act. As specifically established by s.400A(3) of the Act, s.400A does not limit the Commission’s power to order costs under s.611 of the Act. The power of the Commission under s.400A of the Act is independent and in addition to the power under s.611. The Applicant has not made an application for costs pursuant to s.400A of the Act but rather s.611. It is also noted that s.400A of the Act only commenced operation from 1 January 2013, and only applies to dismissals that took effect after 1 January 2013. 28

[131] It is true, and the record reflects, that the Respondent did, initially, however erroneously, consider that the Applicant was casual and therefore, not a person protected from unfair dismissal. This matter was, appropriately, not pressed at the post-conciliation or arbitration stage. The Respondent did however maintain that the dismissal arose due to the conduct of the Applicant resigning from her Australian position, after having accepted a New Zealand position, but then later withdrawing from the New Zealand position, therefore leaving her without a role. As the findings of the Commission show in the substantive decision this was not the case.

[132] Viewing the somewhat voluminous correspondence between the parties, to which the Commission has been privy (in part), does give a view that this matter has been vigorously pursued and defended. The conduct of the various representatives has, at times, appeared terse and frustrated with each other but this is not uncommon or unexpected in litigation of such a contentious nature, as was the matter at hand and it is not a matter which supports the ordering of costs.

[133] For the aforementioned reasons, the Commission is not satisfied that the Applicant has established that the prescription in s.611(1) of the Act, in relation to costs, should be departed from. The application for the award of costs, pursuant to s.611 of the Act, is not granted. The costs application, filed on 25 June 2013, by the Applicant, is dismissed.

[134] I Order accordingly.

COMMISSIONER

 1   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.1) [2013] FWC 2263.

 2 Ibid at [117].

 3   Ibid at [101] to [110].

 4   Ibid at [114] to [116].

 5 Ibid at [125].

 6   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.2) [2013] FWC 4355.

 7   PR538528.

 8   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.3) [2013] FWC 5995.

 9 Ibid at [27].

 10   Ibid at [31] to [32].

 11   [2011] FWA 9138 at [9].

 12   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.1) [2013] FWC 2263 at [114] to [116].

 13   PR911550.

 14  McKenzie v Meran Rise Pty Ltd (unreported, AIRCFB, Giudice J, Watson SDP, Whelan C, 7 April 2000) Print S4692 [7].

 15 (1976) 26 FLR 257.

 16   Ibid at 274.

 17   Nilsen v Loyal Orange Trust (1997) 76 IR 180, 181; citing Attorney-General v Wentworth(1988) 14 NSWLR 481, 491; cited in Holland v Nude Pty Ltd (t/as Nude Delicafe)(2012) 224 IR 16 [7].

 18   Application for costs, filed 25 July 2013 at paragraph ii.

 19   Ibid at paragraph vii.

 20   [2011] FWA 9138.

 21   PN987 to PN988.

 22   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.1) [2013] FWC 2263 at [85].

 23   General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 129; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [17].

 24 (1978) 140 CLR 470.

 25   Heidt v Chrysler Australia Ltd (1976) 26 FLR 257.

 26   Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257; cited in Dryden v Bethanie Group Inc [2013] FWC 224 (unreported, Williams C, 11 January 2013) [20].

 27   Baker v Salver Resources Pty Ltd [2012] FWAFB 4014 (unreported, Watson SDP, Drake SDP, Harrison C, 27 June 2011) [10]; citing Deane v Paper Australia Pty Ltd (unreported, AIRCFB, Giudice J, Williams SDP, Simmonds C, 6 June 2003) PR932454 [7].

 28   Fair Work Amendment Act 2012, Schedule 11, Part 6, Item 12. Also discussed in Veal v Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine[2013] FWCFB 8960 at [13].

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