Miss Lucy Cooper v Making Dough Pty Ltd T/A Bakers Delight the Hub

[2016] FWC 7901

[2016] FWC 7901

FAIR WORK COMMISSION

DECISION

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

Miss Lucy Cooper
v
Making Dough Pty Ltd T/A Bakers Delight The Hub
(U2016/6090)

DEPUTY PRESIDENT BARTEL ADELAIDE, 1 NOVEMBER 2016

Termination of Employment – application for costs.

[1] In a decision issued on 1 September 2016 (the substantive decision) 1, I determined that Ms Lucy Cooper (the applicant) had been unfairly dismissed from Making Dough Pty Ltd T/A Bakers Delight The Hub (the employer) and awarded an amount of compensation.

[2] The applicant has made an application for costs pursuant to s.400A of the Fair Work Act 2009 (the Act). Section 400A provides as follows:

“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.”

[3] Section 402 of the Act, as referred to in s.400A(2) above, requires that a costs application must be made within 14 days of the decision or after the matter is discontinued, as the case may be. The application was made within this timeframe.

[4] The grounds of the application are that the applicant incurred legal costs as a result of the employer’s failure to comply with Directions to file his material.

[5] The applicant filed her material in accordance with Directions issued by the Fair Work Commission (the Commission) on 8 June 2016. The employer was directed to file a list of the names and positions held of each witness; a summary of the evidence of each witness; and any documents relied upon by 25 July 2016.   On 3 August 2016, less than 24 hours before the hearing, the employer filed its material. Three witnesses were identified. Rather than providing a summary of the evidence of each witness, a general summary of the employer’s case was provided. Relevant documents were attached.

[6] Ms Cooper complains that she incurred unnecessary legal costs on 28 July 2016 in attending an appointment with the solicitor who was advising her in relation to the substantive application. The appointment was made in anticipation of having received the employer’s material in compliance with the Directions issued on 8 June 2016. Additional costs were said to have been incurred when the applicant engaged in email correspondence with her solicitor on 1 August 2016 and further costs incurred when she sought advice from her solicitor on 4 August 2016 after receipt of the employer’s material. The amount claimed is $1374.45.

[7] The employer’s response to the application, filed several days late, contends that the only relevant costs were incurred on 28 July and 4 August 2016 and that the employer did comply with the Commission’s directions, albeit after the due date.

Consideration

[8] The power to award costs under s.400A is discretionary. The discretion can only be exercised if the Commission is satisfied that the requirements of the section have been met. In this case, the Commission must be satisfied that costs were incurred by the applicant as a result of an unreasonable act or omission by the respondent in connection with the conduct of this matter. That the respondent failed to comply with the Directions by the required date is an agreed fact.

[9] A document headed “Particulars of Tax Invoice” was provided by the applicant and itemises a range of services provided by her solicitor totalling $1,983.50 (exclusive of GST) which was been rounded down to $1,500 (exclusive of GST). Certain of the identified items have not been claimed by the applicant on the basis that they were provided in connection with other proceedings she had initiated.

[10] A number of the items said to be connected with the substantive application preceded the date of 25 July 2016, being the date when the respondent’s documents were due. I fail to see how these costs could relate to any act or omission by the respondent.

[11] On 4 August 2016 the applicant obtained advice in relation to the material filed by the respondent. The majority of this cost would have been incurred by the applicant had the respondent complied with the directions in a timely manner.

[12] The applicant stated that she attended with the solicitor on 28 July 2016 in anticipation that she would have the respondent’s material by then. I am not satisfied that the full cost of this attendance should be borne by the respondent in circumstances where the applicant elected to proceed with the appointment without the respondent’s documents. The fact that she incurred a cost of $376.00 suggests that other matters were discussed in addition to the respondent’s non-compliance with directions.

[13] If a deduction is made for the matters referred to in the preceding paragraphs, the remaining items amount to approximately $110.00 (exclusive of GST), this being the cost attributed to email exchanges and telephone attendances with the solicitor to discuss the respondent’s non-compliance. I say approximate because of the discount that was applied by the solicitor to the total of all cost items particularised in the tax invoice.

[14] In claiming the amount of $1374.45, the applicant has failed to make a distinction between the costs she incurred as a result of her decision to seek legal advice and the unnecessary costs she incurred as a result of the respondent’s omission.

[15] The respondent has not advanced any reason for its failure to file documents by the required date. I consider that the failure to file its material as directed constitutes an “unreasonable omission” by the respondent, as a result of which the applicant incurred some legal costs. I am aware that the applicant is a student and, as the substantive decision noted, was receiving a modest income from limited working hours. In all the circumstances it is appropriate to exercise my discretion to award costs. I consider that an amount of $130.00 is appropriate and an order to this effect is attached to this decision. 2

DEPUTY PRESIDENT

 1   [2016] FWC 6206.

 2   PR587112.

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