Piyush Jain v Infosys Limited T/A Infosys Technologies Limited
[2015] FWCFB 1134
•17 FEBRUARY 2015
| [2015] FWCFB 1134 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Infosys Limited T/A Infosys Technologies Limited
(C2014/6861)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 17 FEBRUARY 2015 |
Appeal against decision in relation to costs order - costs granted for costs application - appeal granted by consent.
[1] This is an appeal, for which permission is required, against a Costs Order 1 made by the Fair Work Commission (the FWC) on 21 October 2014. This Costs order followed substantial unfair dismissal proceedings in the FWC.
[2] Mr Jain’s initial s.394 application against Infosys Limited T/A Infosys Technologies Limited (Infosys) was dismissed by Hamilton DP in a decision 2 issued on 15 April 2014. Mr Jain’s subsequent appeal against that decision was also dismissed.3 On 11 September 2014 Infosys lodged a costs application pursuant to s.611(2)(a) and (b) and s.400A of the Fair Work Act 2009 (the FW Act).
[3] This Infosys costs application was made on the basis that it argued that Mr Jain’s appeal was commenced and continued without reasonable cause and/or vexatiously consistent with s.611. Secondly, and in the alternative, Infosys argued that, pursuant to s.400A, it was unreasonable for Mr Jain to raise and/or maintain arguments in his appeal which had no reasonable prospect of success. Accordingly, Infosys sought costs associated with the appeal proceedings.
[4] In a hearing before Blair C on 30 September 2014 Infosys adopted the position that it was prepared to discontinue the costs application if Mr Jain would agree to terms of settlement in which he undertook not to pursue further action against Infosys.
[5] The Commissioner put this position to Mr Jain who, somewhat inexplicably, refused to agree to this proposal. After hearing submissions from both parties, the Commissioner determined the matter in the hearing on 30 September 2014 in the following terms:
“PN6
This relates to the application to appeal made by Mr Jain. The Commission is satisfied that 611(2)(a) and 611(2)(b) have been met, given that it should have been reasonably apparent to the applicant in the first instance, that is Mr Jain, that the application for appeal had no reasonable prospect of success, and in the Commission's view, given what has transpired this morning, appears to have been made vexatiously.
PN7
Secondly, in regards to 400A:
PN8
Costs orders against the parties.
PN9
(1) the FWC may make an order for costs against the party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission on the first party in connection with the conduct or continuation of the matter.
PN10
The Commission is satisfied that the applicant in the first part, that is Mr Jain, caused costs to be incurred by the respondent in the first part because of an unreasonable act or omission on his part to settle the matter on terms that were reasonably favourable, and had continued with those processes by lodging the appeal, again referring to section 611 that there were no reasonable prospects of success. Therefore under section 400A the act was unreasonable on the part of Mr Jain. Accordingly the Commission would award costs against Mr Jain. Mr Shariff, you will provide a draft order.
PN11
MR SHARIFF: Yes.
PN12
THE COMMISSIONER: I am not quite sure whether - once you provide that draft order I will seriously consider whether the - as I understand it the proposal that you put recovers about two-thirds?
PN13
MR SHARIFF: Yes.
PN14
THE COMMISSIONER: Or whether I should send it off for taxing purposes.
PN15
MR SHARIFF: Yes may it please you, Commissioner. We'll prepare two orders.
PN16
THE COMMISSIONER: Yes.
PN17
MR SHARIFF: One with a nominated sum and one that refers it off to taxation.
PN18
THE COMMISSIONER: Thank you. The Commission will issue the orders in due course.
PN19
MR SHARIFF: May it please.” 4
[6] Following the hearing on 30 September 2014 Infosys and Mr Jain had further communications over the extent of the cost to be payable.
[7] The Commissioner’s Order, issued on 21 October 2014 provided that:
“1. Mr Jain (the Applicant) shall pay the legal and professional costs and disbursements incurred by Infosys Limited (the Respondent) between 5 May 2014 and 30 September 2014 in respect of the appeal proceedings commenced by Notice of Appeal filed on 5 May 2014 and the proceedings arising out of the Respondent’s application for costs file 11 September 2014, as agreed or assessed;
2. The Respondent shall provide to the Applicant an assessment of costs within seven (7) days of the date of this Order; and
3. In the absence of an agreement in respect of the quantum of costs within 21 days of the provision of the assessment referred to above, the file will be referred for taxation of the costs in accordance with Schedule 3.1 of the Fair Work Regulations 2009.”
[8] Mr Jain’s appeal against that Order was made on the grounds that the Commissioner erred by granting permission for legal representation for Infosys and erred in his conclusions about the costs issue. For reasons which we detail below, it is not necessary that we deal further with Mr Jain’s submissions in this appeal.
[9] The appeal was listed for hearing on 11 February 2015. The initial Infosys submissions advised that the only aspect of the Costs Order made by the Commissioner in which error was conceded went to the extent that the order included costs of the cost hearings itself. In this respect Infosys adopted a position consistent with the conclusion reached in Sharn Stanley v QBE Management Services Pty Ltd. 5
[10] Before the appeal hearing Infosys advised that it had put to Mr Jain an offer whereby the parties would seek the leave of the Full Bench to quash the Costs Order and then permit Infosys to file a Notice of Discontinuance in relation to its costs application. Infosys advised that it did not seek to be heard further on this matter.
[11] Mr Jain subsequently confirmed that he was also satisfied that the Full Bench should consider the matter on the material before it without conducting a hearing. The hearing listed for 11 February 2015 was consequently cancelled. We have considered the matter on all of the material before us. This includes the full sound file of the proceedings before Blair C on 30 September 2014.
[12] The Costs Order includes recognition of all the Infosys legal and professional costs and disbursements between 5 May 2014 and 30 September 2014 relative to both the appeal and the costs application. The basis upon which the Costs Order was issued was not detailed with sufficient particularity so as to adequately explain the scope of that Costs Order. In this respect, we have concluded that the Order effectively exceeds the scope of the Costs Order sought by Infosys in as much as it incorporates consideration of the costs associated with the costs order itself.
[13] We think this situation most likely arose from Mr Jain’s inexplicable behaviour on 30 September 2014 and some uncertainty associated with what actual costs were being pursued by Infosys. The combination of these two factors led to the Commissioner being placed in the invidious situation. However, the Order issued went beyond the remedy sought such that it exceeded the jurisdiction available to the Commission.
[14] It is appropriate that we note that we have not found it necessary to determine the question of whether the FW Act permits a costs application to include costs associated with that costs application itself. The facts of this matter and the position adopted by the parties mean that this issue need not be considered here.
[15] We have concluded that, in this respect, the Costs order reflects an error of a jurisdictional nature which gives rise to more general public interest considerations consistent with s.400 of the FW Act.
[16] The appeal is upheld and the Costs Order of 24 October 2014, quashed. Consistent with the undertaking provided to us, Infosys should lodge with the Full Bench, a Notice of Discontinuance with respect to the Costs application.
1 PR556391
2 [2014] FWC 1934
3 [2014] FWCFB 5595
4 Transcript, 30 September 2014, PN6 - PN19
5 [2012] FWA 10164
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