Redei Enterprises Pty Ltd v Maxwell Coulthard, Grillo Higgins Lawyers and Hector Douglas HR Legal
[2024] FWCFB 450
•6 DECEMBER 2024
| [2024] FWCFB 450 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
ss 375B, 376 and 611 - Application for costs orders
Redei Enterprises Pty Ltd
v
Maxwell Coulthard, Grillo Higgins Lawyers and Hector Douglas HR Legal
(C2024/6494)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 6 DECEMBER 2024 |
Application for costs – application dismissed
Redei Enterprises Pty Ltd (Redei) has made an application under ss 375B, 376 and 611 of the Fair Work Act 2009 (Act) for costs orders against Maxwell Coulthard and his advisers, GrilloHiggins Lawyers and Hector Douglas HR Legal. Mr Coulthard was the applicant in a proceeding brought against Redei under s 365 by which he alleged that he had been dismissed in contravention of Part 3-1 of the Act. Redei objected to the application on the ground that Mr Coulthard had not been dismissed because he had not been an employee of the company, and on the ground that the application was made out of time. At first instance, Commissioner Connolly dismissed Redei’s objections ([2024] FWC 1454). The Commissioner found that Mr Coulthard had been an employee of Redei. He also granted an extension of time for the application to be filed. Redei appealed this decision under s 604 of the Act. On 20 August 2024, this Full Bench concluded that the Commissioner had erred in finding that Mr Coulthard was an employee of Redei ([2024] FWCFB 349). We found that there was no contract of any kind between Mr Coulthard and Redei, that he was therefore not an employee of Redei, and that he had not been dismissed within the meaning of s 386 of the Act. We quashed the decision of Commissioner Connolly and dismissed Mr Coulthard’s application. Redei now asks the Full Bench to award costs against Mr Coulthard and his advisers both in respect of the proceeding at first instance (C2023/7784) and the appeal (C2024/4264).
We have determined this application for costs on the papers. Amongst other considerations, given the nature of the application and our ultimate view, it was unnecessary for us to determine any of the few minor factual disputes that emerged. In that regard, we have placed no weight on the statement of Aurelie McArthur (a paralegal engaged by Hector Douglas HR Legal) as this concerned what appears to be private conversations between representatives that were not relevant to the matters we needed to determine. All parties have also provided comprehensive written submissions.
Section 611(1) of the Act states that a party must bear its own costs in relation to a matter before the Commission. However, s 611(2) provides that the Commission may order a person to bear some or all of the costs of another person if it is satisfied that the person made an application ‘vexatiously or without reasonable cause’, or that it should have been reasonably apparent to the person that the application had ‘no reasonable prospect of success’.
Section 375B states that the Commission may make an order for costs against a party to a dispute if an application has been made under s 365 and the Commission is satisfied that the party ‘caused those costs to be incurred because of an unreasonable act or omission … in connection with the conduct or continuation of the dispute’. Section 376(2) provides that the Commission may make an order for costs against a party’s representative if the Commission is satisfied that the representative ‘encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute’, or because of ‘an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute’.
We have decided not to grant the application for costs for reasons that follow. First, we are not satisfied that the jurisdictional prerequisites are met in respect of any of the provisions under which the costs application is made, either in relation to the application at first instance or in respect of the appeal. We do not consider that s 611(2) is engaged. Although Mr Coulthard’s claim to have been an employee of Redei was not a strong one, it was not a case where it should have been apparent that it had no reasonable prospect of success. And indeed, before the Commissioner, the application succeeded. Further, we find that Mr Coulthard did not make the application vexatiously or without reasonable cause. As to ss 375B and 376, we do not consider that there was a relevant unreasonable act or omission by Mr Coulthard or his representatives in connection with the conduct or continuation of the dispute, despite the claim being weak and despite some aspects of the conduct of the matter. Secondly, even if we had concluded that the jurisdictional requirements of these provisions had been met, we would have declined to exercise the discretion that those provisions would then have conferred on us. In our view, it is not appropriate to award costs against Mr Coulthard and his advisers in respect of the proceeding at first instance for the simple reason that they were successful at first instance. Insofar as the costs application is directed at the appeal proceedings, the premise of the claim for costs is that Mr Coulthard and his advisers should have decided not to resist the appeal. We do not accept this. Having succeeded at first instance, it was not unreasonable that Mr Coulthard would defend the decision of the Commissioner, nor was his position in the appeal one that had no reasonable prospect of success, particularly in light of the requirement that the appellant obtain permission to appeal. Accordingly, the application for costs is dismissed.
DEPUTY PRESIDENT
Determined on the papers
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