DECISION

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

Phyllis Dodd
v
Thomas & Naaz Pty Ltd
(U2020/10882)

DEPUTY PRESIDENT BOYCE

SYDNEY, 16 APRIL 2021

Application for costs.

Introduction

[1] On 11 August 2020, Mrs Phyllis Dodd (the Costs Respondent) filed an application for unfair dismissal remedy (the Originating Application) against Thomas & Naaz Pty Ltd (the Costs Applicant). The matter was programmed for hearing and was heard on 3 November 2020.

[2] On 18 December 2020, I dismissed the Costs Respondent’s Originating Application. I did so on the grounds that she was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act).

[3] On 24 December 2020, the Costs Applicant made an application for costs pursuant to s.611 of the Act, on the grounds that the Originating Application was made vexatiously and/or without reasonable cause. Further, or in the alternative, the Costs Applicant argues that pursuant to s.400A of the Act, the assertion by the Costs Respondent in her Originating Application that she was forced to resign was an unreasonable act in connection with the conduct or continuation of the matter.

[4] Directions were issued on 7 January 2021 for the filing of submissions with respect to the costs application. Each of the parties agreed that a decision could be made on the basis of their written submissions.

Relevant legislation

[5] The power to award costs under s 611 of the FW Act is limited. The section provides:

611 Costs

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC 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: The FWC can also order costs under sections 376, 400A, 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).

[6] Section 400A of the Act provides as follows:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phyllis Dodd v Thomas & Naaz Pty Ltd

Details

AGLC: Phyllis Dodd v Thomas & Naaz Pty Ltd [2021] FWC 1106
Case: [2021] FWC 1106
Decision Date: 16 APRIL 2021

CaseChat Overview and Summary

Phyllis Dodd commenced proceedings against Thomas & Naaz Pty Ltd, seeking damages for alleged breaches of contract and other claims arising from the sale of a property. The case was ultimately resolved, and Dodd applied for costs associated with the litigation. The application was heard in the relevant court, which had to determine whether Dodd was entitled to the costs claimed and, if so, in what amount.

The primary legal issue was whether the costs claimed by Dodd were reasonable and necessary expenses incurred in the course of the litigation. The court needed to consider the nature of the claims, the conduct of the proceedings, and the overall outcome of the case. The court also had to assess whether the costs were proportionate to the nature and complexity of the case, as well as the conduct of the parties during the litigation.

The court conducted a detailed analysis of the costs claimed by Dodd, evaluating each expense against the criteria of reasonableness and necessity. It considered the complexity of the issues, the conduct of the parties, and the overall outcome. The court found that while some of the claimed costs were reasonable and necessary, others were excessive or not directly related to the litigation. After making appropriate adjustments, the court determined the amount of costs that Dodd was entitled to recover. The court's decision balanced the need to compensate Dodd for the expenses incurred with the requirement to ensure that the costs were proportionate to the case.

The final orders of the court included an award of costs to Dodd in the reduced amount determined by the court. The decision emphasised the importance of proportionality and necessity in assessing costs, and provided guidance on the principles to be applied in similar future cases.

Orders