Richard Lunt v Qube Ports Pty Ltd T/A Qube Ports

[2013] FWC 9315

[2013] FWC 9315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Lunt
v
Qube Ports Pty Ltd T/A Qube Ports
(U2013/1962)

COMMISSIONER BISSETT MELBOURNE, 6 DECEMBER 2013

Application for costs.

Background

[1] On 14 June 2013 Mr Richard Lunt (the Applicant) made an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). His employment was terminated by Qube Ports Pty Ltd T/A Qube Ports (Qube Ports or the Respondent) on 27 May 2013.

[2] The application was subject to conciliation where it did not settle. After directions were issued for the filing of materials by each of the parties Qube Ports applied for an order to produce documents etc to be issued directed to the Applicant. The Order was issued by Gooley DP on 11 September 2013 and required that the Applicant produce some documents and other information. The Order was returnable at 10.00 am on 18 September 2013.

[3] On 13 September 2013 the Applicant applied to have the Order set aside. That application was listed for hearing before me at 4.00 pm on 18 September 2013. On 17 September 2013 the Applicant’s then solicitors indicated that it had ceased acting for the Applicant. At the hearing on 18 September 2013 the Applicant’s new legal representative sought an extension of time for compliance with the Order until 27 September 2013. I granted that application and varied the Order so that it was returnable at 4.00 pm on 27 September 2013.

[4] At this time the substantive application was set down for hearing on 28-30 October 2013 in Melbourne. Amended directions were issued which provided the Applicant with the ability to lodge supplementary submissions if required and set a date by which the Respondent was required to file and serve its material in relation to the substantive application to Friday 18 October 2013.

[5] On 24 September 2013 my chambers received advice from the Applicant’s solicitor that the Applicant had withdrawn his objection to the Order.

[6] On 27 September 2013, the day the Order was returnable, my chambers received notification that the Applicant’s solicitor ceased to act for the Applicant.

[7] On the basis of two later applications by the Applicant I made ex parte orders on 27 September and 1 October 2013, extending time for the Applicant to comply with the Order to produce to 12 noon on Thursday 3 October 2013.

[8] The Applicant failed to comply with the Order as varied and has not complied with it to date.

[9] On 4 October 2013 the Respondent made an application to the Fair Work Commission (the Commission) that the Applicant’s application for unfair dismissal be dismissed pursuant to s.399A of the Act on the grounds that the Applicant had failed to comply with a reasonable Order of the Commission.¹

[10] The Respondent also made an application for costs pursuant to s.400A of the Act in respect of the application to dismiss the unfair dismissal application in accordance with s.399A of the Act.

[11] The dismissal and costs applications (collectively the s.399A application) were listed for hearing before me at 2.00 pm Friday 18 October 2013. Directions were issued inviting the Applicant to make written submissions if he wished although it was indicated this was not mandatory and he could make submissions at the hearing.

[12] Prior to the 18 October hearing date the Respondent sought, and the Applicant agreed, that the s.399A hearing date and the directions and hearing dates for the substantive matter of 28-30 October 2013 be vacated. This would allow further conciliation of the substantive application along with a related matter before Gostencnik DP. That conciliation was scheduled for 25 October 2013.

[13] On 25 October 2013 following the conciliation the Respondent contacted my chambers and sought an urgent listing of the s.399A application. The s.399A application was listed for hearing at 3.00 pm Friday 1 November 2013.

[14] On 28 October 2013 my chambers received a further application from the Respondent in which it sought that the substantive application for unfair dismissal be dismissed pursuant to the Commission’s powers to control its own proceedings and/or for abuse of the Commission’s processes (pursuant to s.587 of the Act). The Respondent also sought a costs order under s.400A in relation to its s.587 application (collectively the s.587 application). At the same time the Respondent sought that orders be issued directed to the Applicant requesting the production of items relating to an incident during the conciliation proceedings. An Order to that effect was issued on 29 October 2013 and was returnable at 3.00 pm Thursday 31 October 2013. That Order has not been complied with to date.

[15] On 1 November 2013 the s.399A application and s.587 application were heard. The Applicant failed to appear. The Applicant also failed to comply with the Order to produce returnable on 31 October 2013. My chambers attempted to contact the Applicant but he did not answer his phone.

[16] I am satisfied that the Applicant was served with the s.587 application. Directions were issued to the Applicant with respect to both the s.399A application (on 25 October) and the s.587 application (on 29 October 2013) to allow him, if he so chose, to file written submissions with respect to the two applications. The s.587 application was listed to be heard in conjunction with the s.399A application.

[17] At the time of hearing I was also satisfied that the Applicant did receive all notices for the hearing on 1 October 2013. The email address used to contact him was the email address he supplied to the Commission and from which further correspondence had been received from him. The phone number for the Applicant was a number previously used to contact him. In these circumstances and in my view that, in light of what had occurred to date, the Applicant was unlikely to appear even if the matter was re-listed for another day, I proceeded with the hearing of the applications.

[18] At the conclusion of the proceedings I issued a decision ex tempore pursuant to s.399A of the Act in which I dismissed the application for unfair dismissal made by the Applicant on the grounds that the Applicant had unreasonably failed to comply with a direction or order of the Commission in relation to his application. The order he failed to comply with was the Order to produce documents etc made by Gooley DP on 11 September 2013 and varied by me such that it was returnable on 3 October 2013.

[19] Because I dismissed the application in accordance with s.399A of the Act there was no need for me to consider the application to dismiss the application in accordance with s.587 of the Act. I indicated in my decision that I would order costs against the Applicant although I would need to determine the final amount and whether costs should be ordered for the s.587 application in a further decision.

[20] The transcript of the proceedings was sent to the Applicant. He has not sought to put anything to me arising from the decision.

Costs order

[21] Herbert Smith Freehills (HSF) have represented Qube Ports throughout this matter. Arising from the decision given on transcript it has presented my chambers with an assessment of the costs of Qube Ports. This decision deals with what costs order, if any, should be made against the Applicant.

[22] Two matters need to be determined. Firstly whether costs can (or should) be awarded in respect to the s.587 application as it was not and did not need to be determined, given the success of the s.399A application. Second, if costs should be ordered for the s.399A application and, if relevant, the s.587 applications, what should those costs should be.

[23] Section 400A of the Act states that:

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 may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

Costs and the s.587 application

[24] The s.587 application is a matter arising under Part 3-2 of the Act in that the application has come about arising from an incident in proceedings being conducted under Part 3-2. That is the conciliation conference occurring pursuant to an application under s.394 of the Act.

[25] The application for costs was made in accordance with s.402 of the Act.

[26] There is nothing in s.400A that suggests that because the specific application to which the costs order is sought was not ultimately dealt with the costs order cannot be made. The condition precedent necessary for the making of the order is that there was some unreasonable act or omission by the Applicant in relation to the matter under Part 3-2 and that the application was made in accordance with s.402 of the Act.

Should I make a costs order in relation to the s.587 application?

[27] I do not intend to make a costs order with respect to the s.587 application for the following reasons. Firstly, parties appearing before the Commission generally bear their own costs. Section 611(1) of the Act states that a ‘person must bear the person’s own costs in relation to a matter before the FWC’. Even if it is found that the prerequisites for ordering costs are made out under s.611 or s.400A it is a discretionary decision of the Commission whether, in fact, to make such an order. In determining whether or not to exercise this discretion it is my view the statement at s.611(1) is relevant and should be borne in mind.

[28] Second, the s.587 application was not necessary to dismiss the substantive application. At the time the s.587 application was made the s.399A application had been made and was already listed for hearing in four days time. There was no prejudice to Qube Ports to delay the s.587 application pending the outcome of the s.399A application. Whilst I appreciate the efficiency in having both matters dealt with at the same time this must be balanced against other considerations outlined above.

[29] For these reasons I do not make a costs order against the Applicant with respect to the s.587 application.

Costs and the s.399A application

[30] Section 400A allows for a costs order to be made if the Commission is satisfied that the costs were incurred because of some unreasonable act or omission of the Applicant (in this case) in connection to the conduct of the case.

[31] The costs incurred by Qube Ports in respect of the s.399A application were incurred because the Applicant failed over a reasonable period of time to abide by an Order issued by the Commission to produce certain documents.

[32] Section s.399A(1) of the Act says that:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:...

(emphasis added)

[33] That is, a finding pursuant to s.399A(1)(b) is not just that the Applicant failed to abide by an order of the Commission but that he unreasonably failed to abide by that order. The Applicant was given a number of opportunities to abide by the Order. He withdrew his objection to the Order. There was no claim that meeting the Order would be onerous. In my opinion there was nothing which made the Order difficult to comply with. It did no more than seek that the Applicant produce materials on which he had relied as part of his unfair dismissal claim.

[34] In granting the s.399A application I was satisfied that the Applicant had unreasonably failed to comply with the Order.

[35] Section 400A allows a costs order to be made if the costs were caused by an unreasonable act of the Applicant.

[36] If the failure of the Applicant to abide by an order was unreasonable for the purposes of s.399A it is not necessarily the case that it will also be unreasonable for the purposes of the costs application pursuant to s.400A. A costs application must look to whether the unreasonable act caused the costs to be incurred.

[37] In this case I am satisfied that the Applicant was unreasonable in failing to comply with the Order such that this did cause Qube Ports to incur costs. The circumstances surrounding this case are such that I consider that a costs order should be made.

[38] For these reasons I shall grant the costs of Qube Ports as detailed below in relation to the s.399A application.

Costs sought and granted

[39] In accordance with the directions issued by me at the conclusion of the hearing on 1 November 2013 HSF for Qube Ports has provided a breakdown of costs incurred in respect of the s.399A application and the s.587 application. I have not granted all of the costs as detailed in the assessment of cost provided by HSF for the reasons given below.

Section 399A application

[40] With respect to the s.399A application HSF have included costs relating to:

● attending to the request of the Applicant that the deadline to the order to produce be extended;

● preparing for and attending to the Applicant’s initial application to set aside the order to produce;

● preparing the application to dismiss;

● preparing for and attending the dismissal hearing on 1 November 2013; and

● preparation of the bill of costs.

[41] The application made by Qube Ports was for costs of and incidental to the application to dismiss under s.399A of the Act.

[42] I do not consider that matters associated with the initial request for the Order by Qube Ports or the application to set aside that Order where these events occurred prior to the amended return date of 27 September 2013 to be incidental to the s.399A application such that costs associated with them should be included. It is my opinion the events that occurred prior to 27 September 2013 provided the conditions necessary for the eventual non-compliance that led to the application to dismiss. Having formed the necessary condition for the s.399A application it could not be considered incidental to the application.

[43] For the same reason I will not include costs associated with the initial application by the Applicant to set aside the Order that was listed for hearing on 18 September 2013.

[44] I am satisfied that the requests from the Applicant for an extension to the deadline for the Order to produce that occurred after the return date of 27 September 2013 had passed as being sufficiently incidental to the s.399A application to have the costs of attending to those matters considered in this application.

[45] I do not consider it reasonable to include in any costs order arising from the s.399A application those costs relating to the preparation for an attendance at the conciliation conference of 25 October 2013. The failure of the Applicant to produce the documents sought in the Order did not cause these costs to be incurred by Qube Ports. The conference, as far as it concerns this Applicant, was sought by the Respondent. The conference gave rise to those events relevant to the s.587 application. They should not be included in the costs associated with the s.399A application. Further, the Applicant was not the only applicant involved in the conciliation conference. It is not clear why this Applicant alone should bear the costs of the Respondent’s attendance at that conference.

[46] As to the costs associated with the s.399A application (Attachment 1 to the assessment of costs letter received from HSF on 15 November 2013), I shall make an order as to costs covering all matters in the bill of costs except the following:

● Items 1 - 26: these costs relate to events prior to 27 September 2013. For the reasons given above they are excluded.

Items 70-73, 78, 81 and 82: these matters relate to the conciliation conference of 25 October 2013. I have excluded these items for the reasons given above.

● Items 97-100: these items relate to the s.587 application and have been excluded.
● Item 112: this is a charge for general care and conduct. I am not convinced that an additional amount for general care and conduct is warranted. This amount has been excluded.

● Items 122-3: these costs relate to matters prior to 27 September 2013. For the reasons given above they are excluded.

● Item 128: this appears to relate to the s.587 application and has been excluded.

Section 587 application

[47] For the reasons given above I do not intend to order costs for the s.587 application.

[48] I should comment however that, were I to award costs for the s.587 application, I would exclude from those costs the cost of the conciliation conference and all costs associated relating to a further order for production of documents etc.

Conclusion

[49] The starting position for consideration of each application for costs is that the Commissions is a no cost jurisdiction. Section 611, as stated above, makes it clear that a ‘person must bear the person’s own costs in relation to a matter before the FWC.’ Awarding of costs should not be an ordinary occurrence.

[50] This is an exceptional case. The Applicant’s persistent failure to abide by the order of the Commission showed disregard for the proceedings he had instigated. Extensions were granted to assist the Applicant to comply and still the Applicant showed distain for the Commission’s processes and the other party by failing to comply or to demonstrate that he was attempting to, or had attempted to, comply.

[51] The Applicant was represented at times and was in a position to access advice as to how to pursue his application. Either he did not seek out this advice or he ignored it. The Applicant had opportunities to discontinue his application, an option he did not take. On deciding to continue the application and to discontinue his objection to the order to produce, it was not unreasonable to require that he produce those documents. This he did not do.

[52] Taking into account my reasons for the decision and the exceptional circumstances set out above I will make an order for the Applicant to pay the costs of Qube Ports reflecting this decision.

COMMISSIONER

Appearances:

No appearances for the Applicant.

M. Follett of counsel for the Respondent.

Hearing details:

2013.

Melbourne;

November 1.

Final written submissions:

Respondent, 15 November 2013.

1 Alternatively the Respondent sought an extension of time for the filing of its submissions and witness statements for the substantive unfair dismissal matter.

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<Price code C, PR545037>