Mrs Michelle McKerrow v Sarina Leagues Club Incorporated

[2012] FWA 10471

[2012] FWA 10471

FAIR WORK AUSTRALIA

DECISION

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

Mrs Michelle McKerrow
v
Sarina Leagues Club Incorporated
(U2010/14622)

COMMISSIONER ASBURY BRISBANE, 12 DECEMBER 2012

Application for costs in relation to unfair dismissal remedy - costs awarded.

[1] In a decision released on 31 August 2012, I granted an application by Ms Michelle McKerrow for costs in relation to her application for an unfair dismissal remedy with respect to her dismissal by the Sarina Leagues Club Incorporated (the Club). 1 In that decision I directed Ms McKerrow to provide an itemised list of costs with reference to the Schedule 3.1 of the Fair Work Regulations 2009. Directions were also made for the Club to provide a response to the reasonableness or otherwise of the costs sought by Ms McKerrow.

[2] A costs statement in short form was provided by Ms McKerrow’s legal representative seeking costs in the amount of $20,767.50 relating to 19 items. The Club responded indicating agreement with the costs statement provided on behalf of Ms McKerrow, with the exception of an amount of $9,360.00 relating to 26 occurrences (or 6.5 hours) whereby a solicitor appeared as counsel with respect to preparation and appearance at trial.

[3] The Club submits that this item is excessive having regard to the circumstances of the case, and that the cost of Ms McKerrow’s solicitor in preparing for and attending at the trial should be in the order of $1,950.00 representing $300.00 per hour (inclusive of GST) for 6.5 hours. The Club further submits that this is fair and reasonable having regard to:

• there only being three witnesses called at the trial; and



• the length of the trial being in the order of 2.5 hours.

[4] The Club also submits that the costs of preparing the costs statement should be assessed on the basis of $34.00 per quarter hour instead of $60.00 per quarter hour, as the costs statement was capable of being made by a clerk. According to the Club, the amount of costs ordered should be $8,667.50

[5] I agree with the submissions made by the Club in relation to these matters. Item 13.01 of Schedule 3.1 of the Regulations indicates that with respect to solicitor’s fees, if a solicitor appears as counsel, an amount may be allowed that Fair Work Australia considers to be fair and reasonable according to the circumstances of the case and the seniority of the solicitor. The amount claimed on behalf of Ms McKerrow represents an amount of $1,440.00 per hour for solicitor’s fees.

[6] In my view, that amount is excessive for a brief hearing at which only three witnesses were called. Further, the hearing did not involve novel or complex questions of law or fact. For these reasons I am also of the view that it is not reasonable that an amount be allowed for general care and conduct, given the matters for which such a charge can be made pursuant to item 1201 of the Schedule of Costs do not arise in the circumstances of this case.

[7] Accordingly, I award costs in the amount of $7,892.00 to Ms McKerrow to be paid with seven days of the date of this Decision, and an Order to that effect will issue.

COMMISSIONER

 1   [2012] FWA 7574.

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