Ms Kimberley Johnstone v Novacare Incorporated

[2013] FWC 1610

[2013] FWC 1610

FAIR WORK COMMISSION

DECISION

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

Ms Kimberley Johnstone
v
Novacare Incorporated
(U2012/14092)

COMMISSIONER STANTON NEWCASTLE, 15 MARCH 2013

Application for unfair dismissal remedy - application for costs - non-compliance with directions for arbitration for jurisdictional issue - out of time - application withdrawn during substantive hearing - whether applicant acted vexatiously or without reasonable cause - whether reasonably apparent to applicant that the application had no reasonable prospect of success - exercise of discretion - limited costs awarded.

[1] This matter concerns an application for costs made under s.611 of the Fair Work Act 2009 (the Act) by Novacare Incorporated (the respondent) against Ms Kimberley Johnstone (the applicant) in relation to the unfair dismissal application withdrawn on her behalf by her legal representative, during proceedings on 22 January 2013.

Power to award costs

[2] The power to award costs is discretionary and subject to specified statutory requirements. The presumption of the Act is that each party bears their own costs. Costs may be awarded where the Commission is satisfied that an applicant (or respondent as the case may be) has responded vexatiously or without reasonable cause, or alternatively, that it should have been reasonably apparent to the applicant (or respondent) that the application had no reasonable prospects of success.

[3] The applicant filed her application on 11 October 2012. The application nominated Mr T Cardillo, Solicitor, Harris Wheeler Lawyers as her representative. The application was filed 27 days out of time. In that regard, the applicant stated the following in her application:

5. The application is filed out of time. I will, if the application does not settle at conciliation seek to have the time for filing of the application extended on the following basis:

(1) On or about the 11th September 2012 I commenced proceedings (C2012/5267) in Fair Work Australia under Section 372 of the Fair Work Act requesting that Fair Work Australia deal with a general protections dispute.

(2) On the 14th September 2012 I was notified by the respondent that I had been dismissed.

(3) My application was listed for conciliation on the 26th September 2012 at Newcastle. At the conciliation hearing I amended the application to a Section 365 application.

(4) The conciliation hearing failed to resolve my dispute and a certificate under Section 369 was issued by FWA.

(5) After consulting with my lawyer and counsel I have decided to proceed before FWA under Section 394. I am aware that I could not commence proceedings under Section 394 whilst I had proceedings under Section 365 on foot.

(6) I say that the respondent is not disadvantaged or prejudiced by the late filing of this application.

[4] The Employer’s Response filed on 31 October 2012 raised a jurisdictional objection on the grounds that the application had been filed out of time. The respondent sought resolution of the jurisdictional objection prior to any conciliation of the matter.

[5] A conciliation conference scheduled before a Fair Work Australia conciliator on 2 November 2012 was subsequently cancelled and Directions for arbitration were issued administratively on 26 November 2012.

1. The applicant (Ms Kimberley Johnstone) is directed to file with Fair Work Australia, marked attention to UNFAIR DISMISSAL ROSTERS, and serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of an extension of time for the lodgment of the application in this matter, by no later than noon on Friday, 14 December 2012.

2. The respondent (Novacare Inc) is directed to file with Fair Work Australia, marked attention to UNFAIR DISMISSAL ROSTERS, and serve on the applicant, an outline of submissions and any witness statements and other documentary material the respondent intends to rely on in opposition to an extension of time for the lodgment of the application in this matter, by no later than noon on Friday, 4 January 2013.

[6] The matter was subsequently set down for hearing on 22-24 January 2013. Revised Directions were sent to the parties on 21 December 2012 and the respondent was required to file material by Monday, 14 January 2013.

[7] The applicant failed to comply with the above Directions. The file notes the following communications between the Fair Work Australia Unfair Dismissal Team (UDT) and the applicant or her representative:

17 December 2012

I called the applicant’s representative, following up written submissions that were due on 14 December. Diane advised that she would follow this up with Mr Cardillo.

18 December 2012

Applicant’s representative contacted and he advised he was “unable to get instructions from his client as to whether they will seek an adjournment or EOF request.”

21 December 2012

Applicant’s representative contacted to see if he would still be seeking an adjournment. He advised that he is unable to get instruction from his client and he does not intend to file submissions at this stage. He advised that he is attempting to settle the matter.

4 January 2013

Attempt made to contact the applicant's lawyer to get an update on the matter, and to follow up their submissions. Mr Cardillo is on annual leave. I spoke to Kerry who said she was unsure when he would be returning but his secretary should be back next week. I requested that she calls the UDT upon her return.

9 January 2013

Contact made with Ms D Robert to determine status of matter due to non-compliance with Directions. Fair Work Commission advised Ms Robert would be “lodging documentation explaining the reason for the delay.”

[8] In the absence of any application to adjourn arbitration proceedings or to seek an extension of time for filing, the matter proceeded to arbitration on 22 January 2013. Moreover, it would appear from the File that at no stage between 17 December 2012 and 9 January 2013 was the UDT advised that applicant had been recently subject to surgery.

[9] In so far as the respondent is concerned, the File notes contact was made with the UDT by the respondent’s legal representative, Enterprise Law concerning the applicant’s non-compliance with Directions on 17 December 2012, 2 and 4 January 2013.

[10] On 10 January 2013, the respondent filed submissions concerning its jurisdictional objection which in part stated:

On 3 September 2012, Ms Johnstone was put on notice that she needed to show cause as to why her employment should not be terminated, following receipt by Novacare of a report about an investigation conducted by Janice McLeay into allegations of bullying and harassment.

On 10 September 2012, Ms Johnstone’s solicitor wrote to Novacare advising that she was unable to respond to the notice to show cause as to why her employment should not be terminated, and advising that they were instructed to file proceedings with Fair Work Australia.

On 14 September 2012, Ms Johnstone’s employment was terminated.

Proceedings under s.372 of the Fair Work Act 2009 were commenced in Fair Work Australia, and on 21 September Novacare was notified by Ms Johnstone’s solicitor that these proceedings were amended to include an application under s.365 of the Act.

On 26 September 2012, a conference was held in Fair Work Australia but the matter was not resolved. A certificate under s.369 of the Act was issued by Deputy President Harrison, who also emphasised the timeframes in which Ms Johnstone would be required to continue her claim.

On 11 October 2012, some 27 days after the termination of her employment, an unfair dismissal claim was filed by Ms Johnstone. This claim was notified to Novacare by Fair Work Australia on 23 October 2012, and a conciliation conference was scheduled for 2 November 2012.

Novacare filed an Employer Response to this application and noted a jurisdictional objection, that the application was filed outside of the 14 days required under s.394 (2) of the Fair Work Act 2009. The conciliation conference was cancelled and the matter was listed for hearing on 22, 23 and 24 January 2013.

The Applicant was directed to file and serve submissions and witness statements by 14 December 2012. To date, no material has been filed or served and neither the Applicant nor her solicitor has made contact with Novacare or our solicitor to advise the reasons for this.

In the absence of any material from the Applicant, Novacare is unable to fully respond to the application, and reserves its rights to respond to any material which the Applicant may file and serve subsequently to these submissions.

We note however that, under s.395 of the Fair Work Act 2009, an extension of time may be granted by Fair Work Australia if there are exceptional circumstances. Novacare submits that no such exceptional circumstances exist. In specific response to the matters listed for consideration under s.394 (3) of the Act, we state:

• No reason for the delay has been provided to Novacare by the Applicant or her solicitor.



• The Applicant was aware of the termination of her employment from 14 September 2012, and was aware that such an outcome was a possibility from 3 September 2012, when she was first asked to show cause as to why her employment should not be terminated. She elected to pursue claims under s.372 and s.365 of the Act. These claims were not resolved in conciliation and the Applicant elected not to commence a general protections court application in accordance with s.371 of the Act.



• The Applicant did not file this application until 11 October 2012, some 15 days after the certificate in the (s.372 and) s.365 proceedings was issued under s.369 of the Act.



• The application is without merit. The decision to terminate the Applicant’s employment was made following an investigation conducted by Janice McLeay into allegations of bullying and harassment. The investigation was conducted in accordance with Novacare’s grievance policy and with the Applicant’s agreement. The Applicant was afforded procedural fairness, was provided with a copy of the investigator’s report and was given the opportunity to respond and show cause as to why her employment should not be terminated. No such response was provided.

The Applicant has failed to adequately prosecute her claim and has provided no submission, witness statements or other documentary material on which to rely in this matter. No explanation for the failure to comply with the Directions issued by Fair Work Australia has been provided by the Applicant or her solicitor to Novacare or our solicitor. For this, and the above reasons, Novacare seeks for this matter to be dismissed.

[11] During the course of proceedings on 22 January 2013, Mr Cardillo stated he had been retained by the applicant to advise her in “relation to these proceedings and to use my best endeavours to settle the matter.” 1 He further submitted a settlement offer had been rejected by the applicant on the grounds that the proposed Deed of Release would prevent her from making a claim for unpaid wages. No estimate of alleged unpaid wages was put to the Commission.

[12] Mr Cardillo submitted the applicant “did not have the funds” to support a three day hearing. While he was confident the applicant had “a good argument in relation to the jurisdictional issue,” she had been employed for a short time and “even if she were to be successful, certainly on the advice that I’ve given her, (it is) not economically viable.” 2 Mr Cardillo subsequently submitted:

We (had) proceedings... in another jurisdiction in relation to other aspects of her rights and the matter didn’t settle there and my expectation was that it would not settle here either but she insist (sic) in bringing the application before this Tribunal for unfair dismissal in the endeavour to try and settle the matter... 3

[13] Mr Cardillo submitted the applicant underwent surgery immediately prior to Christmas and his attempts to obtain instructions from her were unsuccessful. While he had also sought instructions from the applicant “fairly early in the piece to consider withdrawal at an early point in time,” he was unsuccessful. 4

[14] Mr Cardillo informed the Commission that he had represented the applicant (and another employee) in general protections proceedings before the then Fair Work Australia:

Those proceedings did not result in a settlement and both employees subsequently brought unfair dismissal proceedings. I didn’t see any value in bringing unfair dismissal proceedings in relation to this particular applicant; however, the applicant held some hope that the matter would settle. 5

[15] Mr Cardillo submitted he could not advise the applicant to accept the respondent’s offer of settlement because it would extinguish her “claim for unpaid wages (that) were many thousands of dollars and will be the subject of further proceedings.” 6

[16] Mr T Saunders of Counsel submitted the respondent’s primary position was that it should have been apparent to the applicant and her advisors that the claim had no reasonable prospect of success on the grounds that:

• The application was filed 27 days after the date of dismissal; and



• no explanation had been provided at any time by the applicant as to why the application was filed late particularly in circumstances where she had been in receipt of legal advice at all material times, including prior to her dismissal. 7

[17] Mr Saunders submitted the applicant was interviewed by the independent investigator, Ms McLeay, and was provided with a copy of the independent investigation report (the investigation report). In that regard, the applicant was given an opportunity to comment on the investigation report’s findings: 8

(i) that the CEO, Mr McCarthy had not bullied or harassed the applicant;

(ii) the grievances lodged by the applicant against Mr McCarthy were frivolous and vexatious; and

(iii) the applicant had demonstrated her unsuitability for the role of manager by showing her disrespect for the policies and procedures of Novacare and disrespect for the Board and CEO.

[18] Further, the Chair of the respondent wrote to the applicant on 3 September 2012 setting out the independent investigation findings in relation to the grievances. A copy of the investigation report was attached to that correspondence with a request that the applicant should respond to a ‘show cause’ why her employment should not be terminated by the close of business 11 September 2012.

[19] Mr Saunders submitted Mr Cardillo wrote to the respondent on 11 September 2012 to put it on notice that the applicant was unable to respond to the ‘show cause’ request and he had been instructed to commence proceedings before Fair Work Australia against the respondent. 9

[20] By not accepting the opportunity to ‘show cause’ and respond to the matters determined by the independent investigation, the applicant’s employment was terminated on 14 September 2012. The letter of termination set out the investigation report’s findings and the reasons for her dismissal.

[21] Mr Saunders submitted there was a valid reason for the applicant’s dismissal, supported by the investigation report. Accordingly, it should have been apparent to the applicant and her advisors that she had no reasonable prospect of success.

[22] Mr Saunders contended the application was made vexatiously on the grounds that the investigation report found the applicant’s complaints against the CEO were vexatious. 10 Moreover, following her dismissal, she commenced a general protections claim which was not pressed before the Federal Magistrates Court and the current claim pursuant to s.394 of the Act. There was also a foreshadowed claim for unpaid wages. Against that backdrop, Mr Saunders submitted those actions taken as a whole were pressed vexatiously as a means of trying to obtain settlement out of the respondent.11

[23] Mr Cardillo refuted the suggestion that the applicant’s extension of time and unfair dismissal application had no prospect of success. He submitted a general protections and unfair dismissal application could not be pressed simultaneously.

[24] Mr Cardillo submitted the Commission has a discretion to allow an extension of time. In that regard, Mr Cardillo stated:

The evidence hasn’t been put before you, Commissioner, in relation to evidence and I don’t have that evidence to present today as to what basis upon which she would ask the (Commission) to exercise this discretion. 12

[25] Mr Cardillo contended the applicant’s complaints concerning bullying and harassment were genuine. The respondent had concluded the applicant was guilty of bullying and harassment “without hearing anything whatsoever from the worker.” 13 Further, the applicant claimed that while she was interviewed by the independent investigator and asked a series of questions concerning her complaint, it “came as a complete surprise”14 to receive correspondence from the respondent stating she had bullied and harassed the CEO. Accordingly, she did not know how to address the ‘show cause’ request due to the vague and generalised allegations set out in the respondent’s correspondence.15

[26] Mr Cardillo submitted the applicant was not afforded procedural fairness by the respondent during the period leading up to her dismissal.

[27] Mr Cardillo further contended that the proper course would have been for the respondent to meet with the applicant concerning the conclusions reached regarding her conduct as set out in the investigation report. The respondent had determined the applicant was guilty of misconduct before putting the allegations to her.

[28] In reply, Mr Saunders submitted the applicant was provided with a copy of the investigation report, some 27 pages in total, which set out in detail the investigation, its findings and recommendations. In the event the applicant was concerned or could not understand the allegations concerning her conduct, she could have written to the respondent seeking such details. However, the applicant refused to respond to the ‘show cause’ and instead elected to initiate proceedings before Fair Work Australia. 16

[29] Mr Saunders also referred the Commission to the following paragraph set out in the investigation report which detailed the specific allegation that she was undermining the CEO, Mr McCarthy:

There were several examples given where it appears that Ms Johnstone has misinformed Mr Murphy and or Ms Laughlin about what Mr McCarthy has said including her telling Ms Laughlin that Mr McCarthy had approved her request to work from home. Other examples of her directly undermining Mr McCarthy included tabling his salary in a meeting where other managers were present.

Consideration

[30] The power of the Commission to award costs against a party in relation to a matter is contained in s. 611 of the Act and is discretionary:

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 of the 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).

[31] Section 402 of the Act deals with the making of applications for costs orders in matters arising under Part 3-2 of the Act. That section relevantly provides:

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.

[32] This matter was set down for jurisdiction hearing on 22 January 2013 and the applicant was represented by Mr Cardillo. Shortly after the commencement of those proceedings, Mr Cardillo stated he had been retained by the applicant to advise her “in relation to these proceedings and to use my best endeavours to settle the matter.”

[33] Mr Cardillo subsequently informed the Commission the applicant was recovering from recent surgery and was unable to be present. Mr Cardillo explained the applicant had limited funds and proposed to withdraw her application. That proposition was formalised by Mr Cardillo on her behalf shortly thereafter.

[34] Other than referring to the fact that the applicant was recovering from recent surgery, Mr Cardillo was unable to provide any explanation as to why the applicant had failed to comply with the Directions issued on 26 November 2012 to file and serve the materials she intended to rely upon in the jurisdictional hearing. Nor was Mr Cardillo able to provide the Commission with the reasons why the applicant did not communicate with the UDT, the respondent or its legal representatives to seek a variation to the Directions or an adjournment of the hearing commencing on 22 January 2013.

[35] In awarding costs, the Commission must be satisfied that when the relevant application was made, it was made vexatiously or without reasonable cause: Zhang v The Royal Australian Chemical Institute Inc. (No.2). 17 Similarly, the Commission must be satisfied that it should have been reasonably apparent to the applicant at the time the application was made that she had no reasonable prospects of success.

[36] As a general proposition, where the facts in a particular unfair dismissal case are disputed and the success of an application depends on the resolution of questions of law or fact in the applicant’s favour, the Commission is generally less likely to grant an award of costs against an applicant. That proposition reflect the scheme of the Act that parties must bear there own costs in relation to proceedings before the Commission.

[37] The claim for costs by the respondent was pressed on the basis that the application was made vexatiously and without reasonable cause and that it should have been reasonably apparent to the applicant that her application had no reasonable prospect of success.

[38] Section 611(2) provides three grounds on which the Commission may exercise a discretion to order costs against an applicant and there is a degree of overlap between them.

Vexatious or Without Reasonable Cause

Vexatious

[39] The first ground relied upon by the respondent is that the application was made ‘vexatiously’. In Nilsen v Royal Orange Trust, 18 North J discussed the meaning of the term, ‘vexatiously’ in the context of an application for costs under s.347 of the then Workplace Relations Act 1996:

The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth 19.

[40] In Hanrahan v Wesfarmers Dalgety Ltd, 20 Wilcox CJ stated:

... the word ‘vexatiously’ has a connotation of action taken to harass or annoy another party, an element of malice being involved. If an applicant has an honest but mistaken belief that he or she has a legitimate claim, then it is very unlikely that the application will have been found to have been commenced vexatiously.

[41] Mr Cardillo sought instructions from the applicant “fairly early in the piece” to withdraw her application but to no avail.

[42] In referring to the applicant's general protections application which followed her refusal to participate in the respondent's request to participate in the ‘show cause’ and this application, Mr Cardillo stated the following:

We (had) proceedings... in another jurisdiction in relation to other aspects of her rights and the matter didn’t settle there and my expectation was that it would not settle here either but she insist (sic) in bringing the application before this Tribunal for unfair dismissal in the endeavour to try and settle the matter... 21

[43] With respect to the applicant's general protections application, she did not press that application before the Federal Magistrates Court within the statutory 14 day time limit. Rather the applicant decided to proceed against the respondent under s.394 of the Act, in an endeavour to settle her grievance with the respondent despite Mr Cardillo's observation that “even if she were to be successful, certainly on the advice that I’ve given her, (it is) not economically viable.” 22

[44] In Re Cameron, 23 Fitzgerald P considered the circumstances that may deem legal proceedings vexatious:

It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court's processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis ...(footnotes omitted).

Without Reasonable Cause

[45] The second ground relied upon by the respondent is that s.611(2)(a) also refers to the claim being brought ‘without reasonable cause’. The meaning of that term was considered by Wilcox CJ in Kanan v Australian Postal and Telecommunications Union 24 where his Honour observed:

It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. 25

[46] In Kanan, his Honour considered there was no discretionary reason to withhold an order for costs:

It is not a matter of the applicant’s motives but, rather, that he has put the respondent to the expense of resisting a claim which was always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding. 26

[47] The Full Bench in Stango v Frews Wholesale Meats 27 placed emphasis on the test being one of not what should have been apparent to the applicant but what was the applicant’s own view of the facts at the relevant time.

No Reasonable Prospect of Success

[48] The test under s.611(2)(b) concerns what should have been reasonably apparent to an applicant that the application had no reasonable prospect of success.

[49] In A Baker v Salva Resources Pty Ltd, 28 the Full Bench summarised the approach to be taken in relation to subsection 611(2)(b) of the Act as follows:

[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:

• ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and



• a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. (footnotes omitted)

[50] The applicant was in receipt of legal advice immediately prior to her dismissal and the making of the application subject to these proceedings. It was Mr Cardillo's submission that he had told the applicant that her s.394 application was not “economically viable.”

[51] Moreover, in relation to the applicant's s.394 application, Mr Cardillo further contended:

I didn’t see any value in bringing unfair dismissal proceedings in relation to this particular applicant; however, the applicant held some hope that the matter would settle. 29

[52] In light of Mr Cardillo's doubts concerning the applicant's prospects of success for an unfair dismissal remedy, she nevertheless proceeded to make her application “in the hope that the matter would settle.”

[53] In circumstances where an application is withdrawn prior to the filing of all evidence or where the facts of the case have not been tested formally against the evidence and the applicable law, the Commission would be generally required to exercise a degree of caution in deciding whether an applicant, as is the case here, has commenced proceedings ‘without reasonable cause’ or in circumstances where it should have been reasonably apparent that the application had ‘no reasonable prospect of success.’

[54] The late withdrawal of an application will not generally justify an award of costs against an applicant. However, such conduct may be indicative of an application made vexatiously or without reasonable cause.

[55] The circumstances of this particular case warrant consideration of a different approach. On the material before the Commission the applicant has demonstrated a pattern of not prosecuting her applications for relief under the Act. She failed to pursue her general protections application beyond the issue of the relevant s.369 Certificate.

[56] In relation to this application, the applicant has failed to comply in any way with the Directions issued on 26 November 2012 to enable her s.394 application to proceed to the jurisdictional hearing in a rational and orderly way. She has unashamedly displayed a total disregard towards the process that affords applicants, such as herself, protection from unfair dismissal and the objective that such matters are dealt with efficiently in terms of both time and cost to the parties.

[57] The Objects of the unfair dismissal provisions set out in s.381 of the Act seek to establish quick, flexible and informal procedures that address the needs of both employees and employers ensuring a “fair go all round.”

[58] On the material before the Commission the applicant has remained silent concerning her delinquent response to the Directions issued on 26 November 2012. By that action the applicant has caused the respondent to incur unnecessary legal costs which could have largely been avoided had she displayed the courtesy to withdraw her application, consistent with the urging of her legal representative, at an earlier stage. I note the respondent is also a not-for-profit organisation.

[59] On the material before the Commission I have formed the view that the applicant’s s.394 application subject to these proceedings was made with no real intention by her to prosecute it. Against that backdrop, it is my finding that the applicant has filed this application for the collateral purpose of obtaining a payment from the respondent rather than for the purpose of having the Commission determine the matter on its merits in the normal course.

[60] This matter proceeded to hearing in circumstances caused by the applicant where neither the evidence nor the applicable law could be fully scrutinised or tested. Moreover, when the applicant instituted these proceedings against the respondent she did so contrary to the legal advice given to her at the time. It follows that the applicant made her application for an unfair dismissal remedy vexatiously and without reasonable cause. I am also satisfied that it should have been reasonably apparent to the applicant at the time that her application had no reasonable prospect of success. However, in the absence of cross examination of the applicant, I am not satisfied there is firm evidence to support the proposition that the predominant purpose of the application was to harass or embarrass the respondent.

[61] None of the submissions put on behalf of the applicant in this matter weigh strongly against the making of an order for costs. No explanation was advanced concerning any ‘exceptional circumstances’ that may have supported the granting of an extension of time to file her s.394 application. Further, the applicant’s s.394 application was, on the material before the Commission, made against the advice of her legal representative.

[62] In so far as the applicant’s recent surgery was concerned, no medical certificates or similar evidence was submitted to suggest that she was unable to comply with the Directions due to any incapacity. She was, however, unable to attend the hearing on 22 January 2013 due to her apparent incapacity following surgery.

[63] In my view the applicant had no reasonable prospect of success in persuading the Commission to extend time, particularly given the absence of any filed evidence and the fact that the application was made 27 days after the date of dismissal and 15 days after the s.369 Certificate was issued in respect of her general protections claim.

[64] I have carefully considered the submissions of the parties in relation to this application for costs. In the circumstances of this particular case, I consider that it would be appropriate to make an order pursuant to s.611 of the Act that the applicant bear some of the legal costs incurred by the respondent in relation to this matter.

[65] I order that the application by the respondent for costs be upheld and the applicant shall pay one half of the respondent's costs in relation to this application incurred from the date of application up to and including 22 January 2013 as agreed or assessed to a maximum of $2500.00.

COMMISSIONER

Appearances:

Mr T Cardillo, Solicitor, Harris Wheeler Lawyers.

Mr T Saunders, of Counsel, instructed by Ms M McNaughton, Enterprise Law.

Hearing details:

2013

Newcastle:

January 22.

 1   Transcript at PN5

 2   Ibid PN7

 3   Ibid PN11

 4   Ibid PN21

 5   Ibid PN24

 6   Ibid PN30

 7   Ibd PN45

 8   Ibid PN49

 9   Ibid PN53-57

 10   Ibid PN65

 11   Ibid PN66

 12   Ibid PN78

 13   Ibid PN78

 14   Ibid PN82

 15   Ibid PN84

 16   Ibid PN99

 17   [2004] FCA 1626 at [5]

 18 (1997) IRCA 267

 19 (1988) 14 NSWLR 481 at 491

 20 (1996) 39 AILR 3-235

 21   Ibid PN11

 22   Ibid PN7

 23 [1996] QCA 37

 24 (1992) 43 IR 157

 25 (1992) 43 IR 157 at 264-265

 26 (1992) 43 IR 157 at 284

 27   Print Q8637.

 28   [2011] FWAFB 4014

 29   Ibid PN24

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