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

[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.

Printed by authority of the Commonwealth Government Printer

Ms Tarra Richter brought a claim against Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds before the Fair Work Commission, which was later the subject of an appeal before the Full Bench of the Federal Circuit and Family Court of Australia. The initial dispute centred around the calculation of costs that arose from a decision issued on 16 April 2013. The original decision had addressed various claims made by Ms Richter, including those related to her employment conditions and the manner in which she was dismissed.

The key legal issues before the Full Bench were whether the costs awarded in the initial decision were appropriate and whether any adjustments needed to be made. The Full Bench had to consider the principles governing the assessment of costs in such matters, including whether the costs were reasonable, necessary, and proportionate to the proceedings. Additionally, the court needed to determine if there were any grounds for varying the costs order, such as changes in the circumstances since the original decision or errors in the calculation of the costs.

The Full Bench held that the costs awarded in the initial decision were generally appropriate, taking into account the nature and complexity of the proceedings. However, the court found that there were some errors in the calculation of the costs, particularly regarding certain disbursements and the application of a fixed fee rate. The Full Bench made adjustments to the costs order to correct these errors, resulting in a slight reduction in the amount awarded to Ms Richter. The court emphasised the importance of accuracy in the assessment of costs and noted that any errors should be rectified to ensure fairness and transparency in the proceedings.

The final orders of the court included a revised costs order, reflecting the adjustments made by the Full Bench. The court directed that the revised costs order be given effect in accordance with the law and the principles governing the assessment of costs in employment disputes. The decision underscores the need for careful and precise calculation of costs in such matters, and the role of the courts in reviewing and correcting any errors that may arise.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established