Mrs Michelle McKerrow v Sarina Leagues Club Incorporated

[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.

Printed by authority of the Commonwealth Government Printer

Mrs Michelle McKerrow has applied for costs against Sarina Leagues Club Incorporated in relation to a successful unfair dismissal remedy she obtained. The Federal Circuit and Family Court of Australia considered the application, assessing the fairness of the costs sought and the conduct of both parties. The primary legal issue before the court was whether the amount of costs claimed by McKerrow was reasonable and necessary, and whether the conduct of the respondent warranted any penalty or deduction in the costs awarded. The court found that McKerrow's application for costs was reasonable and necessary, given the complexity of the case and the extensive work involved. The court noted that the respondent had unreasonably protracted the proceedings by not providing necessary information and by filing unfounded allegations. Consequently, the court awarded McKerrow the full amount of costs claimed, with an additional penalty for the respondent's unreasonable conduct.

The court's reasoning was grounded in the principles that the costs of litigation should reflect the work reasonably required and that parties are expected to act fairly in the proceedings. The court emphasised that the respondent's unreasonable conduct in withholding information and making unfounded allegations significantly contributed to the length and complexity of the case. The court concluded that the full amount of costs claimed by McKerrow was justified, but also imposed a penalty on the respondent to reflect their unreasonable conduct. The final orders of the court included an award of costs to McKerrow in the full amount claimed, along with a penalty for the respondent's unreasonable conduct.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established