Ms Tarra Richter v Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds

[2013] FWC 5522

[2013] FWC 5522

FAIR WORK COMMISSION

DECISION

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

Ms Tarra Richter
v
Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds
(U2012/12275)

DEPUTY PRESIDENT SMITH MELBOURNE, 5 SEPTEMBER 2013

Quantum of costs arising out of decision issued on 16 April 2013 [[2013] FWC 2116].

[1] On 16 April 2013 a decision [[2013] FWC 2116] was made awarding costs against a representative in a matter arising under s.394 of the Fair Work Act 2009 (the Act). This decision deals with the amount of costs to be awarded arising from that decision. The matter originally arose from a jurisdictional matter heard and determined by His Honour Deputy President Hamilton on Thursday 13 December 2012 by Ex Tempore Decision in Transcript. 1 Hamilton DP dismissed the matter by order [PR532329] and in relation to the matter of costs directed the respondent to file an application within seven days and serve it on the applicant.2

[2] My earlier decision concluded:

“[41] Therefore I shall only award costs against Mr Bingham from 10 December 2012. The parties should consult and advise me if agreement is reached. If not, I shall accept written submissions. The parties can determine the schedule but all submissions should be lodged by 24 May 2013.”

[3] Submissions were lodged. Lawyers acting for Scottridge Holdings Pty Ltd examined the operation of s.403 of the Act and Regulation 3.08, including a submission that the Commission had power to award indemnity costs [Goffett v. Recruitment National [[2009] AIRCFB 626].

[4] A schedule was provided which itemised all of the costs incurred against the item numbers contained in Sch.3.1. In total an amount of $14,133.90 (including GST) was claimed as reasonable costs incurred.

[5] The respondent to the application, Mr John Bingham rejected the amount claimed and argued that:

● The matter did not involve complex or difficult questions.

● Did not require the presence of Senior Counsel to argue the jurisdictional point.

[6] In considering the level of representation it is important to consider the allegations made. The applicant in the original proceedings alleged that she was forced to resign her position because of sexual harassment and bullying. These are serious claims no doubt advanced seriously. Indeed, the further lodgment in the Victorian Civil and Administrative Tribunal (VCAT) supports the seriousness with which the applicant took the matter. Indeed, in my earlier costs decision I concluded that: “In my view this is a weak case to the awarding of costs against Ms Richter. Mr Bingham is another matter.” The employer was entitled to take advice as to the best person to represent its interests in such a case.

[7] Whilst it might be desirable for Counsel briefed in the matter to see the matter to finality. The matter was essentially at an end during the proceedings before His Honour Deputy President Hamilton. The matter of costs was a discreet argument that could have been put by someone else. It was not a novel or difficult matter given the decision reached by His Honour. That is why in my earlier decision I only decided to award costs from when the application was made to VCAT which gave rise to His Honour’s decision.

[8] In considering what may be reasonable in all the circumstances of the case, I am not satisfied that an amount of $7,500 (item 8) is reasonable for the matter to be considered particularly against the background of the ancillary charges for emails attendance and other associated matters. I would consider an amount of $5,000 to be reasonable in all the circumstances of the case given what I understand to be the range of fees charged and the attendance of a Solicitor. I do not regard the fee of $2,500 (item 28) to be unreasonable on the basis discussed above. The final charge of $375 seems unnecessary in the conduct of the case.

[9] In all the circumstances I find that the costs claimed are largely reasonable in all the circumstances of the case. I will award costs of $9,974 plus GST.

DEPUTY PRESIDENT

Final written submissions:

V. Boubis, Solicitor—written submissions dated 24 May 2013.

J. Bingham, Solicitor—written submissions dated 5 June 2013.

 1   Transcript of proceedings before Hamilton DP, 13 December 2012, PN309.

 2   Ibid, PN311.

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