Mitford Investments Pty Ltd ATF the JJG Trust T/A Integro Private Wealth v Rick Adaszko
[2022] FWC 483
| [2022] FWC 483 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth
v
Rick Adaszko
(U2020/11708 and C2020/9213)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 MARCH 2022 |
S 611 – Application for costs against a party
Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth (the Applicant) made an application for an indemnity costs order in accordance with s 402 of the Fair Work Act 2009 (the Act) against Mr Rick Adaszko following its successful responses to an application for unfair dismissal (unfair dismissal application)[1] and to the application for permission to appeal made by Mr Adaszko (appeal application).[2] During the abovementioned proceedings, Mr Adaszko had also challenged the Applicant’s applications to be legally represented for the unfair dismissal application and the appeal application.
In a decision and order dated 30 July 2020 (Costs Decision),[3] I ordered the following:
a) Pursuant to s 611(2)(b) of the Act, Mr Adaszko is to pay Mitford’s costs incurred on and after 7 September 2020 and until 13 May 2021 on an indemnity basis subject to the orders below.
b) Mitford is directed to provide a written itemised assessment of the costs to Mr Adaszko within seven days of the issuing of the Order, having regard to items that are referred to in the Schedule of Costs in Schedule 3.1 of the Fair Work Regulations 2009 (Cth) (Regulations). In doing so, Mitford is directed to file submissions, witness statements, and any other material it wishes to rely upon to support its written itemised assessment.
c) Mr Adaszko is directed to file submissions, witness statement, and any other material he wishes to rely upon in response to the written itemised assessment within seven days of receipt of Mitford’s materials.
d) The parties are then directed to confer and seek to reach agreement on the quantum of the costs. If the costs are not agreed within 14 days of the receipt of the itemised assessment by Mr Adaszko, Mitford is to file the itemised assessment with my Chambers for the purposes of taxing the costs. Further directions may then be issued, in addition to a Notice of Listing for a conference.
e) The costs are to be paid within 28 days of the date of this Order (if the quantum is
agreed) or the date the costs are taxed by the Commission, whichever is the latter.
The Applicant provided a written itemised assessment of the costs (Itemised Assessment) to Mr Adaszko, but the quantum of costs was not agreed. Whilst there was some difficulty securing the parties attendance at a conference, eventually a conference was set down for 1 March 2022 for the purposes of taxing the costs. The parties were notified of this conference by means of a Notice of Listing sent on 21 December 2021. It was made clear to the parties through this document and subsequent email correspondence that my preference was for the parties to be in attendance, because I would be reviewing the Itemised Assessment and would seek clarification and input from both parties.
The Applicant was represented at the conference by Mr Moloney of Armeli & Molony Lawyers, who presented the Itemised Assessment. Mr Adaszko was self-represented.
I gave the parties the opportunity to address me in relation to each item on and after 7 September 2020 and until 13 May 2021 in the Itemised Assessment and I then assessed each item in accordance with Schedule 3.1 of the Regulations. I had regard to s 403(2)(b) of the Act, which provides that if an item appears in Schedule 3.1, the Commission must not award costs in relation to that item at a rate, or of an amount, that exceeds the rate or amount appearing in the schedule. However, it should also be again noted that in my Costs Decision, costs on an indemnity basis were awarded against Mr Adaszko.
The Applicant had, when preparing its Schedule of Costs, set out its Itemised Assessment such that a column identified the ‘Scale costs’ – being those costs that Schedule 3.1 provides, and a column identified as ‘Indemnity Costs’ being those costs paid by the Applicant to its solicitors Armeli & Molony Lawyers for the work performed for the various proceedings. These proceedings included the unfair dismissal application of 28 August 2020, the appeal application of 23 December 2020, the costs application of 26 February 2021, and applications for legal representation regarding the unfair dismissal application and the appeal application.
Mr Adaszko was provided with the opportunity to provide written submissions and any other material he wished to rely upon in response to the Itemised Assessment. Mr Adaszko asked this Commission to consider the documents he had filed on 7 September 2021, in addition to a final statement he had prepared for an unrelated matter in another jurisdiction. Mr Adaszko also made submissions at the conference. In short, Mr Adaszko objected to the Applicant’s costs application and ventilated those matters that had already been decided by this Commission. Unfortunately, Mr Adaszko did not turn his mind to the items in the Itemised Assessment.
However, I have considered the Itemised Assessment and have questioned the Applicant on the same. The responses garnered have been taken into account. I am of the view that the Itemised Assessment includes items that are not reasonable in the following respects:
a) the Applicant seeks costs for the preparation time of drafting the Form F53 in addition to preparing submissions for legal representation in respect of the unfair dismissal application. The scale amount for the preparation of a Form F53 amounts to $24.00. The Applicant seeks $532.50. The Applicant seeks a further $1605.00 for the preparation of submissions concerning legal representation. The scale amount is $64.00. Whilst appreciating that the award was for indemnity costs, it nevertheless remains that the costs sought are to be fair and reasonable, appropriate, and justifiable. Ultimately, it sat with the Applicant as to whether it sought to be represented for the unfair dismissal application. Further, in my view the amount attributed to the item is excessive – particularly that for completing a Form F53. In light of the submissions made, I do not consider it appropriate to include in any order the amount of costs claimed by the Applicant in respect of it being represented for the unfair dismissal application. The scale amount will be awarded of $88.00.
b) the Applicant seeks costs for the preparation of submissions for legal representation with regard to the appeal application. Entries in the Itemised Assessment show an amount of $2640.00 for the preparation of submissions for legal representation at appeal and an amount of $2081.25 for preparation for the hearing on legal representation before Commissioner McKinnon. The combined amounts result in costs of $4721.25. The Applicant submits that the appeal proceedings were of a different nature in its entirety to the unfair dismissal application, with a different set of facts, and preparation included being able to respond to any issue raised. I appreciate that on the appeal application the level of complexity had intensified. However, the legal principles regarding permission to be represented are uncontroversial and accepted. The Applicant had already addressed such principles in its application at first instance. As such, the Applicant had already undertaken work on this legal subject matter. I do not consider it appropriate to include in any order the amount of costs claimed by the Applicant in respect of it being represented for the permission to appeal proceedings and have therefore reduced the amount to $2640.00.
Part 12 of Schedule 3.1 of the Regulations provides that the Commission may also allow an amount it considers reasonable in the circumstances of the case for general care and conduct. In particular, Item 1201 of Schedule 3.1 outlines that if the case or circumstances warrant it, an allowance may be claimed in addition to any other item that appears in Schedule 3.1 for general care and conduct in relation to the following:
a) the complexity of the matter and the difficulty and novelty of questions raised;
b) the importance of the matter to the party and the amount involved;
c) the skill, labour, specialised knowledge and responsibility involved in the matter on the part of the solicitor;
d) the number and importance of the documents prepared or perused, without regard to length;
e) the time taken by the solicitor; and
f) research and consideration of questions of law and fact.
In determining whether an allowance should be made in this case for general care and conduct, I had regard to:
a) the matters outlined in Item 1201 of Schedule 3.1;
b) the submissions made on behalf of the Applicant during the conference before me regarding the nature of all the proceedings and the comments made by Mr Adaszko in response; and
c) the Federal Court of Australia’s Guide to Discretionary Items in Bills of Costs, which indicates that a percentage in the range of 0—15% is commonly allowed for skill, care and responsibility.
I determined that in all the circumstances of this proceeding, the allowance sought by the Applicant of $4500.00 was not appropriate. Further, while Counsel for the Applicant expanded upon the work undertaken to justify the allowance sought, in my view it lacked the specificity required to distinguish it from other entries in the Itemised Assessment. No allowance was awarded.
Therefore, the total of my assessment of the costs claimed by the Applicant is $39,817.75 (inclusive of GST). This amount arises from work undertaken by legal representatives of the Applicant for the application for unfair dismissal,[4] the application for permission to appeal made by Mr Adaszko,[5] the interlocutory applications regarding legal representation and the Applicant’s costs application.[6]
Pursuant to my Order[7] and Decision,[8] Mr Adaszko is to pay the Applicant $39,817.75 (inclusive of GST) within 28 days of 4 March 2022.
DEPUTY PRESIDENT
Determined on the Papers
Printed by authority of the Commonwealth Government Printer
<PR739013>
[1] U2020/11708.
[2] C2020/9213.
[3] Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko[2021] FWC 4632.
[4] U2020/11708.
[5] C2020/9213.
[6] Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko[2021] FWC 4632.
[7] PR732317.
[8] Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko[2021] FWC 4632.
Printed by authority of the Commonwealth Government Printer
<PR739013>
0
0
0