Ms Danielle Cartledge v Creasey's Pty Ltd T/A Gold Sovereign Motor Inn
[2010] FWA 7113
•11 OCTOBER 2010
[2010] FWA 7113 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Danielle Cartledge
v
Creasey's Pty Ltd T/A Gold Sovereign Motor Inn
(U2009/14113)
COMMISSIONER LEWIN | MELBOURNE, 11 OCTOBER 2010 |
Application for cost order—vexatious—without reasonable cause—no reasonable prospect of success.
[1] In this matter Creasey’s Pty Ltd T/A Gold Sovereign Motor Inn (Creasey’s) has applied under s.611 of the Fair Work Act 2009 (the Act) for an order that Ms Danielle Cartledge pay costs in relation to an application (the substantive application) for relief in respect of the termination of her employment, brought by Ms Cartledge pursuant to s.394 of the Act.
[2] The substantive application was the subject of a decision [PR999744] and order [PR999986] made on 3 August 2010. The application was dismissed.
[3] That application was made on 24 November 2010. The matter was first listed for conciliation by telephone on 22 December 2009. In the decision of 3 August 2010 I set out the background to the hearing of the application as follows:
“...
[5] During the telephone conciliation on 22 December 2009, Ms Cartledge appeared on her own behalf. Creasey’s were represented by Cuthbertson Barristers and Solicitors. Terms of settlement were agreed upon during the conciliation. Those terms were signed by the Mr Ben Green on behalf of the Respondent. Ms Cartledge did not sign the terms of settlement agreed to during the conciliation conference.
[6] On 15 March 2010 Mr Ben Green wrote to Fair Work Australia in the following terms:
“...
We are of the view that our clients incurred costs unreasonably because of the action of the applicant. Whilst we acknowledge that the applicant may or may not have had legal advice, we contend that the applicant brought about an application which lacked any merit.
The applicant failed and has continued to fail to execute the Terms of Settlement as provided by FWA on the day of conciliation. Because these terms have not been executed, our client is still exposed to liability, the matter has not been resolved by FWA’s own documentation we put the Applicant on notice that we shall seek our client’s legal costs.
We contend that because the Applicant has clearly not bothered to sign the Terms that it is open to the Respondent to make application in respect to the costs incurred.
Under the FWA Act an applicant making a costs application has fourteen days in which to do so, after the matter has been resolved. By the inaction of the Applicant, the matter is still open.
...
[7] On 14 May 2010, the application was listed for Arbitration Conference/Hearing on 20 July 2010 at the Ballarat Magistrates Court. Directions were included on the notice of listing for that Hearing which directed Ms Cartledge to file an outline of submissions and any witness statements and other documentary material by noon on 11 June 2010. Creasey’s were directed to file by noon on 25 June 2010. The notice of listing and directions were sent to Ms Cartledge by post and by email to the addresses provided on the application. Creasey’s representative was sent the notice of listing and directions by email and Creasey’s were notified by post.
[8] Ms Cartledge did not file pursuant to the Directions of 14 May 2010. On 17 June 2010 the application was listed for Non Compliance Conference/Hearing by telephone on 24 June 2010. Parties were directed to confirm their telephone numbers 3 days prior to the listing. Creasey’s representative confirmed participation at the Non Compliance proceeding and provided a contact telephone number. Several attempts were made to contact Ms Cartledge by telephone prior to the proceedings scheduled for 24 June 2010 to no avail. Fair Work Australia was unable to contact Ms Cartledge on 24 June 2010 to conduct the Non Compliance Conference/Hearing.
[9] On 24 June 2010, Fair Work Australia issued a notice of listing changing the Arbitration Conference/Hearing listing for 20 July 2010 from Ballarat Magistrates Court to Fair Work Australia in Melbourne. Creasey’s was excused from attending. Due to a change in allocation of the file, the listing was changed from 20 July 2010 to 21 July 2010. Ms Cartledge was notified of this change via email on 13 July 2010.
[10] Ms Cartledge failed to attend the Hearing at 10.00 am on 21 July 2010. My Associate attempted to contact Ms Cartledge after that time and that day by telephone to no avail.
[11] At the Hearing, I expressed my view, for the record, that the applicant had failed to attend to the proceedings. It appears, considering all the circumstances, that the applicant is failing to prosecute the application.”
[4] I determined the matter by dismissing the application.
[5] On 5 August 2010 the costs application pursuant to s.611 of the Act was listed for Hearing at 10.00 am on 26 August 2010. The notice of listing was sent by email and fax to Creasey’s legal representatives and was sent to Ms Cartledge by email and post.
[6] At the Hearing on 26 August 2010, neither party attended the costs Hearing. Attempts were made to contact Creasey’s legal representatives and Ms Cartledge. Shortly after 10.00 am my Associate contacted Mr Taylor of Cuthberts Barristers and Solicitors. Mr Taylor confirmed receipt of the notice of listing and apologised for the non-attendance on behalf of Creasey’s. Shortly after the Hearing Mr Taylor filed a letter in Fair Work Australia reiterating his apology and requesting a further Hearing in this matter. My Associate was unable to contact Ms Carteldge.
[7] In these circumstances, having provided the parties with an opportunity for a Hearing and both parties failing to avail themselves of that opportunity, I decided to determine the application on the papers. On 26 August 2010 I issued Directions pursuant to which Cresey’s were required to file full written submissions and supporting materials in relation to the application for costs by 9 September 2010. Ms Cartledge was required to file submissions in reply and supporting materials in relation to the costs application by 23 September 2010.
[8] On 9 September 2010 Cuthberts Barristers and Solicitors filed materials in support of the application including submissions and a copy of the application for costs which was originally filed in Fair Work Australia on 19 July 2010.
[9] Ms Cartledge did not file any materials in Fair Work Australia pursuant to the Directions of 26 August 2010.
Statutory requirements
[10] Section 402 of the Act prescribes a time limitation for application for costs arising under Part 3–3—Unfair Dismissal and is set out below:
“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 401, must be made within 14 days after:
(a) FWA determines the matter; or
(b) the matter is discontinued.”
[11] The application was lodged in Fair Work Australia on 19 July 2010. The application is therefore within the time prescribed by s.402 of the Act. For reasons which follow it is not necessary to decide if the application has standing, having been filed before rather than after the determination of the substantive application by Fair Work Australia.
[12] The costs application is made pursuant to s.611 of the Act and in particular the provisions of subsection (2) thereof. Section 611 is set out below:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA 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: FWA can also order costs under sections 376, 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).”
[13] It will be observed that the Act confers a power to award costs against a self represented person only where costs have been incurred as a result of a person either making or responding to an application vexatiously, without reasonable cause, or where Fair Work Australia is satisfied that it should have been reasonably apparent to that person that the application had no reasonable prospect of success. Unless Fair Work Australia is satisfied that such conditions precedent exist, no power to award cost arises.
[14] Creasey’s rely on the following grounds which were filed in the Tribunal on 19 July 2010 and 9 September 2009 as an attachment to the application:
“
• The application lodged by Ms Cartledge was without any merit.
• Terms of settlement were agreed to in December 2009, and Ms Cartledge failed and/or refused to execute the said Terms.
• Ms Cartledge failed and/or refused to respond to the communication and attempts by Fair Work Australia to contact her.
• Ms Cartledge other than the lodging of the initial of the initial Form 2 has failed to prosecute her claim.
• The applicant has failed to comply with Directions made by Fair Work Australia.”
[15] Creasey’s also state in their submissions that they rely on the Decision of 3 August 2010 and the Transcript of proceedings of 21 July 2010.
Vexatious or without reasonable cause
[16] Creasey’s did not make any submissions pursuant to my directions in relation to whether the substantive application was vexatious. Nor did they provide any submissions regarding whether or not the substantive application was ‘without reasonable cause’ except insofar as Creasey’s stated in a letter of 20 July 2010 lodged with the application, “whilst the applicant may or may not have had legal advice, she brought about an application which we consider lacked merit”. On what is before me, I do not know the merits of the substantive application.
No reasonable prospect of success
[17] Creasey’s did not make any submissions regarding whether the application had any reasonable prospect of success except for the sentence contained in the letter of 20 July 2010 referred to above.
The Proceedings
[18] In respect of Creasey’s reliance on the transcript of proceedings in relation to the substantive application, of 21 July 2010 and the Decision of 3 August 2010, a paragraph 2 of the transcript of proceedings I stated my view that “the applicant has failed to attend to the proceedings...and it would seem to me, fairly clear that the applicant is failing to prosecute the application that has been made”. Further, I indicated an intention to strike the application out.
[19] In the Decision of 3 August 2010, I gave reasons for dismissing the application pursuant to s.587 of the Act on the grounds that Fair work Australia had made all reasonable attempts to provide Ms Cartledge with the opportunity to prosecute the application and that Ms Cartledge had been afforded adequate and fair opportunities to have the application heard and dealt with and had failed to avail herself of those opportunities.
[20] In neither the Decision of 3 August 2010 nor the Transcript of the proceedings of 21 July 2010 is it concluded that the application was made vexatiously, without reasonable cause or with no prospect of success. While Creasey’s seek to rely on the abovementioned decision and transcript, there is nothing contained therein which goes to whether the requirements of s.611(2)(a) or (b) of the Act have been met.
[21] The grounds upon which costs can be ordered under s. 611 of the Fair Work Act 2009 (Cth) differ substantially from the grounds upon which they could be ordered under the Workplace Relations Act 1996. The grounds under s.658 of the Workplace Relations Act 1996 were far broader and are set out below:
“658 Commission may order payment of costs
(1) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 643; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;
the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 643 has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 643 caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.
[22] Therefore, under the Workplace Relations Act 1996, the power to award costs arose where the Australian Industrial Relations Commission was satisfied that costs were incurred by an unreasonable act or omission by a party which caused unnecessary expense to another party.
[23] If the application was made under the Workplace Relations Act 1996, the omissions of Ms Cartledge in failing to discontinue the proceedings and failing to respond to Directions and attend the hearings may have been judged unreasonable and to have caused the power to award costs incurred by the respondent for professional representation at proceedings which Ms Cartledge failed to attend to arise.
[24] Clearly, the circumstances under which a power to award costs under the Act differ and do not confer power upon Fair Work Australia to make orders for costs against self represented applicants under Part 3-2 of the Act for failing to discontinue an application or unreasonable acts and/or omissions which may result in other parties to proceedings incurring expenses unnecessarily, without establishing the considerations set out in s.611 of the Act. However, it may be noted that s.401 provides certain powers to award costs against lawyers and paid agents.
[25] On what is before me I cannot be satisfied that the substantive application was made vexatiously, without reasonable cause or had no reasonable prospects of success. Creasey’s have failed to make out their application in accordance with the requirements of s.611 of the Act. There has been a change in the statutory provisions governing the circumstances where a power to award costs will arise from the predecessor provisions of the Workplace Relations Act 1996. Perhaps this change has not been fully comprehended in relation to the application in this matter.
[26] The application is dismissed, an order will issue accordingly.
COMMISSIONER
Final written submissions:
Mr Peter Taylor, on behalf of Creasey's Pty Ltd T/A Gold Sovereign Motor Inn, 9 September 2010
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