Sagona v R and C Piccoli Investments Pty Ltd and Ors (No.2)
[2014] FCCA 2925
•16 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAGONA v R & C PICCOLI INVESTMENTS PTY LTD & ORS (No.2) | [2014] FCCA 2925 |
| Catchwords: INDUSTRIAL LAW – COSTS – Whether unreasonable act or omission by respondents caused applicant to incur costs – whether respondents unreasonably refused to participate in conciliation before Fair Work Australia – whether respondents acted unreasonably in refusing an offer of settlement – ss.570(2)(b) and (c) of the Fair Work Act 2009 (Cth) considered – whether costs should be awarded on an indemnity basis – whether costs should be awarded where penalties imposed on respondents directed to be paid to the applicant exceed the costs claimed – no order as to costs made. |
| Legislation: Civil Dispute Resolution Act 2011 (Cth) Fair Work Act 2009 (Cth), ss.341, 360, 361, 365, 369, 545, 546, 570 Federal Circuit Court Act 1999 (Cth), Part 4 |
Explanatory Memorandum to the Fair Work Bill 2008 (Cth), para.2230.
| Amcor Ltd & Ors v Barnes & Ors (No.5) [2013] VSC 51 Workplace Ombudsman v Queensland Marine and General Insurance Management Pty Ltd & Ors [2011] FMCA 261 |
| Applicant: | SAMANTHA JANE SAGONA |
| First Respondent: | R & C PICCOLI INVESTMENTS PTY LTD |
| Second Respondent: | ROBERT COSIMO PICCOLI |
| Third Respondent: | CHRISTINE MARY PICCOLI |
| File Number: | MLG 1619 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 19 June 2014 |
| Date of Last Submission: | 19 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Fetter |
| Solicitors for the Applicant: | Kelly Workplace Lawyers |
| Counsel for the Respondents: | Ms S Fitzgerald |
| Solicitors for the Respondents: | Russell Kennedy |
ORDERS
The Application in a Case filed 28 May 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1619 of 2012
| SAMANTHA JANE SAGONA |
Applicant
And
| R & C PICCOLI INVESTMENTS PTY LTD |
First Respondent
| ROBERT COSIMO PICCOLI |
Second Respondent
CHRISTINE MARY PICCOLI
Third Respondent
REASONS FOR JUDGMENT
Introduction
On 30 April 2014, the Court handed down judgment in this
matter (“the substantive judgment”) in which findings were made that the Respondents, R & C PICCOLI INVESTMENTS PTY LTD
(“the First Respondent”), ROBERT COSIMO PICCOLI
(“the Second Respondent”) and CHRISTINE MARY PICCOLI
(“the Third Respondent”) (collectively “the Respondents”),
had breached ss.51 and 340 of the Fair Work Act 2009 (Cth) (“the Act”) and it was ordered that the Respondents pay compensation to the Applicant, SAMANTHA JANE SAGONA (“the Applicant”).[1]
The Court also ordered that the Respondents pay certain penalties and that those penalty payments should be paid to the Applicant.
The Applicant now seeks an order for costs.[2]
[1] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875.
[2] Application in a Case filed 28 May 2014.
The capacity of the Court to order costs with respect to proceedings under the Act is limited by the provisions of s.570 of the Act:
Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note:The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii)the matter arose from the same facts as the proceedings.
In this case, the Applicant relies on s.570(2)(b) and (c) of the Act.
The Applicant also seeks that the costs be paid on an indemnity basis.[3] The Court must therefore be satisfied that the Respondents, by their unreasonable act or omission, caused the Applicant to incur costs and/or that the Respondents unreasonably refused to participate in a matter before Fair Work Australia (“FWA”) where the matter before the FWA arose from the same facts as the proceedings before the Court.
[3] Ibid, at p.2.
In order for the Court to award indemnity costs, the Court must be satisfied that there is some special or unusual feature about the case to justify the ordering of costs other than on a party-party basis. Further,
if the preconditions of s.570 of the Act are met, and/or if the conditions exist for an award of costs on an indemnity basis, the Court has a discretion to determine whether, in the circumstances of the case,
costs should be ordered and on what basis.
The principles to be applied
The starting point for a consideration of how costs should be applied
in these matters is the policy behind s.570 of the Act. That
has been variously expressed. In Hobson v BWL Pty Ltd (No.3) (2012)
222 IR 48, the Court stated the following:
The policy underlying s 570 of the FW Act remains as it was under predecessor legislation, namely, to limit the ability of courts to award costs in workplace relations matters as part of a policy of discouraging legalism in workplace relations proceedings.[4]
[4] (2012) 222 IR 48, p.68 at para.59.
In Beggs v Login Systems Pty Ltd (No.2) [2013] FCCA 1761 (“Beggs”),
Judge Riley noted:
The respondent acknowledged that the policy underpinning
s.570 of the Act and its statutory forebears is to displace the common law rule that costs follow the event and to make an award of costs an unusual event predicated upon particular facts.[5]
[5] [2013] FCCA 1761, p.3 at para.10.
In Muzzicato v New Aged Cleaning Services Pty Ltd (2011) 214 IR 116, the Court, having dismissed the substantive application summarily, was asked to consider the making of an order for costs. The Court said as follows:
As I said before, it is a discretionary power that I have and as a general imperative, as I see it or a general thrust of the Act is to avoid costs where normally costs follow the event. That is not obviously the way costs are considered under the Act.[6]
[6] (2011) 214 IR 116, p.120 at para.16.
In Construction, Forestry, Mining and Energy Union & Ors v Clarke (2008) 170 FCR 574 (“Clarke”), the Full Court of the Federal Court warned with respect to the use of s.824(2) of the Workplace Relations Act 1996 (Cth) (“Workplace Relations Act”), predecessor legislation to s.570 of the Act:
Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best.[7]
[7] (2008) 170 FCR 574, p.582 at para.29.
With respect to the provisions themselves, the Court in Clarke said:
The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in
“an unreasonable act or omission”. As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 and Siopis J in
McAleer v University of Western Australia (No 2) (2007)
161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have
“caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.[8]
[8] Ibid, at para.28.
In attempting to draw that threshold line, Tracey J, in Australian and International Pilots Association v Qantas Airways Ltd (No.3)
(2007) 162 FCR 392 (“Qantas”), referred to the judgment of Lockhart J in Standish v University of Tasmania (1989) 28 IR 129, where his Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent. Justice Tracey went on to say:This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2).
The prosecution of any incompetent or hopeless case can be regarded as “an unreasonable act” within the meaning of
s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act.[9]
[9] (2007) 162 FCR 392, p.402 at para.36.
It is clear from the authorities that determining whether a party has engaged in an unreasonable act or omission requires an objective analysis of the particular circumstances of the case. This includes circumstances occurring after the institution of the proceedings.
In Workplace Ombudsman v Queensland Marine and General Insurance Management Pty Ltd & Ors [2011] FMCA 261, Burnett FM, as he then was, considered the following:
Unreasonable does not necessarily mean that it has to be negligent; it simply means it has to be measured against what a reasonable person would expect.[10]
[10] [2011] FMCA 261, p.11 at para.32.
In Suda Ltd v Sims (No.2) [2014] FCCA 190, Judge Lucev said of the discretion under s.570(2)(b) of the Act:
The exercise of the discretion in s.570(2)(b) is not necessarily engaged because:
a) a party does not conduct litigation efficiently;
b) a concession is made late;
c)a party may have acted in a different or timelier fashion; or
d)a party has adopted a genuine but misguided approach.[11]
[11] [2014] FCCA 190, p.7 at para.19.
In refusing an application for costs in Beggs, Judge Riley referred to the following issues:
·
First, there were reasonable arguments, based on authority,
in support of the applicant’s application; and
·Second, as the applicant had one arguable point, her Honour did not consider that it would be appropriate to order costs against him because he also ran a lesser argument at the same hearing.[12]
[12] [2013] FCCA 1761.
Even where the merits are not strong, the existence of an arguable case may be sufficient to establish that the actions of the party were not unreasonable.[13]
[13] See Scale v Professional Investment Services Pty Ltd [2013] FCCA 1343.
Section 570(2) of the Act does not restrict the ability of the Court to award costs on an indemnity, or some other basis, once the preconditions for an award of costs under this section are met. Referring to the circumstances in which such an award might be made, Tracey J in Qantas made the following observations:
The “tests” used to identify such cases have been couched in general terms such as “when the justice of the case might so require” or whether there exists “some special or unusual feature on the case to justify the Court in departing from the ordinary practice”. These “tests” have, for example, been found to have been met in cases in which unwarranted allegations of fraud have been made, proceedings have been prosecuted for some ulterior motive or in wilful disregard of known facts or clearly established law or where there has been an imprudent refusal of an offer of compromise.[14]
[14] (2007) 162 FCR 392, p.403 at para.39.
In Genovese v BCG Construction Pty Ltd (No.2) [2007] FMCA 601 (“Genovese”), Lucev FM, as he then was, provided an extensive list of circumstances or issues to which the Court might give consideration or weight in determining whether to make, and the extent of, an indemnity costs order. Those issues included:
a) whether a party should have known that there was no prospect of success in the case;
b) where a party alleges fraud or forgery, knowing the accusation to be false, or irrelevant to the issues;
c) where a party precipitately punctuates proceedings by resiling from a previously adhered to view;
d) where a party acts in a high handed manner;
e) whether the party against whom indemnity costs is sought is a self-represented litigant, and whether the self-represented litigant ought escape the consequences of indemnity costs;
f) where a party proceeds “vexatiously” that is “without sufficient grounds for the purpose of causing trouble or annoyance”;
g) where a party proceeds for no good purpose at all due to inertia and carelessness;
h) where a party persists in the making of allegations which ought not have been made, or in undue prolongation of groundless contentions;
i) where a party’s conduct causes loss of time to the Court, and to other parties;
j) where a party imprudently refuses an offer to compromise;
k) whether the award of indemnity costs is sought against a contemnor; and
l) having regard to the objects of:
i)encouraging savings of private costs and avoidance of inherent risks, delays and uncertainties of litigation;
ii)saving public cost necessarily incurred in litigation which events demonstrate to have been unnecessary; and
iii)indemnifying one party where the real cause and occasion of the litigation is the attitude adopted by the other party.
The discretion is not so circumscribed that an indemnity costs order “may only be made against an ethically or morally delinquent party”. The discretionary categories are not closed, and “other elements of litigatious of misconduct may be relevant”.[15]
[15] [2007] FMCA 601, pp.17-19 at paras.47-48.
The extent of a costs order may also be influenced by the conduct of the case and whether the party against whom costs are sought was entirely unsuccessful or whether the successful party has raised some issues which have failed. In Amcor Ltd & Ors v Barnes & Ors (No.5) [2013] VSC 51, Vickery J referred to the judgement of Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited(No.3) [2002] FCA 1294 where his Honour commented in that respect:
I consider that a court should look more benignly on the question of costs of a respondent who has been compelled to come to court and defend itself on a ground not of its own choosing than on an applicant who chooses to raise issues on a ground of its choosing.[16]
[16] [2013] VSC 51, p.7 at para.33.
The Applicant’s case
The Applicant relies on the following in support of the application under s.570(2)(b) of the Act.
Based on the material contained in the affidavit of JOSEPH PATRICK KELLY (“Mr Kelly”)[17] and the Applicant’s affidavit of 1 August 2013, the Applicant contends that, by around 25 October 2012,
[17] Affidavit of Joseph Patrick Kelly filed 28 May 2014.
the Respondents had the following crucial documents in their possession:
·Digital recordings of the:
o11 September 2012 conversation between the Applicant and the Second Respondent;
o14 September 2012 conversation between the Applicant and the Second Respondent;
o20 September 2012 morning conversation between the Applicant and the Third Respondent; and
o20 September 2012 evening conversation between the Applicant and the Second and Third respondents.[18]
[18] Exhibits A2, A3, A4, A5, and A8.
The Respondents also had:
·The Applicant’s 11 October 2012 letter of demand which outlines the Applicant’s pregnancy discrimination claims;
·The Applicant’s letter of 4 September 2012 regarding maternity leave and long service leave;
·The document entitled ‘28 weeks revue (sic) for Kristian Piccoli and Samantha Sagona 4/9/2012’ (“the 28 week review”) which set unachievably high sales targets and threatened to reduce the Applicant’s remuneration if these targets were not achieved;
·The document entitled ‘Performance review and ammendment (sic) to work agreement between Piccoli Photography and Samantha Sagona - 04/09/2012’ (“the variation document”);
·The Applicant’s letter of 10 September 2012, in which she complained of poor treatment and pregnancy discrimination;
·
The Applicant’s email to the Third Respondent of
13 September 2012 regarding the unilateral changes to her Google calendar and the deletion of calendar entries;
·The Applicant’s email of 14 September 2012 regarding the Respondents’ unreasonable working hours request;
·The Respondents’ 11 September 2012 file note provided to the Applicant on 18 September 2012;
·The Applicant’s 20 September 2012 letter ending her employment, which makes reference to discrimination and constructive dismissal; and
·
Numerous documents relating to the sales performance of the Applicant, KRISTIAN PICCOLI and the Second Respondent,
in particular the regular non-achievement of the $10,000.00 individual weekly sales target.[19]
[19] Applicant’s Submissions filed 19 June 2014, pp.5-6 at para.6(b)-(k).
The Applicant submits that, based on the above documents in their possession, by around 25 October 2012 the Respondents:
[W]ould have had, or should have had, a very clear view of the strength of the Applicant’s case against them and the weakness of their own case, and had, or (should have had) knowledge that any defence of a pregnancy discrimination claim and/or adverse action claim brought by the Applicant against them would fail. This is particularly so given the applicable reverse onus of proof under the Act, and the fact that the prohibited reasons for the actions only needed to be one of the reasons why the Respondents took the action against the Applicant.[20]
[20] Applicant’s Submissions filed 19 June 2014, p.6 at para.7.
Further, the Applicant submits that at this time, the Respondents were legally represented and had been receiving legal advice in relation to the Applicant’s pregnancy. Accordingly, it is submitted that the Respondents were “well placed to understand the applicable legal framework, their potential liabilities, and what resolution options were available to them”.[21]
[21] Ibid, p.7 at para.8.
The Applicant also refers to numerous references in the judgment in the substantive application where the documents referred to above (excluding the 11 October 2012 letter of demand) were referred to in support of the Applicant’s successful claim. With respect to the claim under s.570(2)(c) of the Act, the Applicant submits that the Respondents unreasonably refused to participate in the matter when it was before FWA by:
·
The content of the Employer’s Response to Application
for FWA to Deal with a General Protections Dispute[22]
(“Employer’s Response); and
·Refusing to attend the 4 December 2012 FWA conciliation without a reasonable excuse.
[22] Affidavit of Joseph Patrick Kelly filed 28 May 2014 at Annexure “JPK-6”.
The Applicant contends that both the FWA application and the
Federal Circuit Court of Australia (“FCCA”) Statement of Claim[23] and the Respondents’ Employer’s Response and Defence[24] demonstrate that both the FWA matter and the FCCA proceedings arose from the same facts.
[23] Statement of Claim filed by the Applicant on 17 December 2012.
[24] Defence filed by the Respondents on 14 March 2013.
The Applicant submits that, despite the documents in their possession at around 25 October 2012:
[I]n their Employer Response the Respondents continued to deny that they had taken adverse action against the Applicant because of her pregnancy or because she had exercised a workplace right. Given the documents in their possession at the time, it is submitted that such denials were not genuine and instead made for purely strategic reasons and, therefore, constituted an unreasonable refusal to participate in the FWA matter.
Further, in their Employer Response, the Respondents made numerous baseless and unsubstantiated claims against the Applicant which were not supported by the evidence in their possession at the time and ultimately not pursued in the
Federal Circuit Court proceeding.[25]
[25] Applicant’s Submissions filed 19 June 2014, p.8 at paras.12-13.
The Applicant further submits that the Second Respondent has not provided any independent evidence in admissible form regarding why he did not attend the FWA conciliation or was unable to attend the mediation by telephone (as suggested by the Applicant). Based on the material contained in the affidavits of:
·CAROLINE MARY MCKENZIE filed 13 June 2014;
·CRISTIAN MCHEILEH (“Mr Mcheileh”) filed 23 July 2013; and
·The Applicant filed 23 July 2013,
and the Respondent’s failure to attend the 24 May 2013
FCCA mediation in almost identical circumstances, it is submitted that:
[T]he evidence overwhelming [sic] indicates that the
Second Respondent’s non-attendance at the 4 December 2012 FWA conciliation was premeditated and undertaken for
non-genuine strategic reasons and, therefore, constituted an unreasonable refusal to participate in the matter when it was before FWA.[26]
[26] Applicant’s Submissions filed 19 June 2014, p.10 at para.16.
The Applicant further contends that:
[T]he Third Respondent has no explanation for why she failed to attend the FWA conciliation other than the fact that the
Second Respondent was not going to attend. As a named respondent, the Third Respondent was required to attend the conciliation irrespective of the attendance or non-attendance of any other respondent. Further, on the morning of
4 December 2012, the Third Respondent was advised by … the associate to Justice Boulton … that the conciliation would not be adjourned on that day and any adjournment request was required to be made in person. Again, in the light of [the affidavits previously referred to] and their failure to attend the
24 May 2013 Federal Circuit Court mediation in strikingly similar circumstances, it is submitted that the evidence clearly indicates that the Third Respondent’s failure to attend the FWA conciliation constituted an unreasonable refusal to participate in the matter when it was before FWA.[27]
[27] Ibid, p.10 at para.17.
The affidavit of Mr Kelly supports the contention that the Applicant attended on 4 December 2012 ready to settle and that chance was thrown away at a very early stage of the proceedings. While the Applicant had put certain matters in her letter of demand in
October 2012, things can be different when one is in the room with a professional mediator. The evidence of Mr Kelly was that, at that stage, the Applicant was willing to settle for $50,000.00 to $80,000.00.
The evidence from the Third Respondent was that she wanted an adjournment on 3 December 2012 for business reasons until after
28 January 2013. This was refused and an adjournment for one day was granted. On 4 December 2012, there is then a different reason.
The conciliation was set down for 1.30 p.m. At 11.37 a.m., the
Third Respondent asked for another adjournment on the grounds of the ill health of her father-in-law. She was advised to attend and seek the adjournment in person. The Applicant’s solicitor consented in advance to the appearance being done by telephone. At 1.30 p.m. there was no appearance by the Respondents and no telephone call.
In addition, the Applicant submits that:
[T]he information contained in the 23 July 2013 affidavit of Cristian Mcheileh suggests that an alleged full day appointment made by the Respondents on 3 December 2013 … was made by the Respondents after they learned of the conciliation scheduled for that day so that they had an excuse for non-attendance. It is submitted that this too constitutes an unreasonable refusal on behalf of the Respondents to participate in the FWA conciliation scheduled for 3 December 2012.[28]
[28] Applicant’s Submissions filed 19 June 2014, p.10 at para.18.
The Applicant submits that it appears that s.570(2)(c) of the Act has not yet been judicially considered. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“the Explanatory Memorandum”) provides:
The third ground for awarding costs has been added to enable a court to award costs against a party if the party unreasonably refused to participate in a related matter before FWA - i.e., a matter arising from the same facts. This new ground is intended to encourage genuine participation in matters before FWA and quicker and more efficient resolution of disputes.[29]
[29] Explanatory Memorandum to the Fair Work Bill 2008 (Cth), at para.2230.
The Applicant submits that the purpose of s.570(2)(c) of the Act is to encourage the efficient resolution of disputes and thus save public resources by avoiding court-based litigation procedures:
In light of the evidence regarding the Applicant’s settlement range of between $50,000 and $80,000, if the Respondents had reasonably participated in the FWA conciliation, the dispute could have been resolved at the FWA stage at a level very beneficial to the Respondents.[30]
[30] Applicant’s Submissions filed 19 June 2014, p.11 at para.22.
If this had occurred:
·The matter would not have needed to progress to the FCCA;
·The parties would not have incurred substantial legal costs; and
·Expenditure of significant public resources would have also been avoided.[31]
[31] Ibid.
The Applicant submits that, based on the preceding facts, this is a situation where the Court should exercise its discretion to award the Applicant her legal costs of, and incidental to, the proceedings from the date of the Employer’s Response, being 22 November 2012,
or alternatively, the day of the FWA conciliation, being
4 December 2012, calculated on an indemnity basis.
The Applicant relies on the following to constitute unreasonable acts or omissions by the Respondents that caused the Applicant to incur costs:
·
The Respondents’ failure to respond to the Applicant’s
11 October 2012 letter of demand despite having indisputable evidence in their possession indicating the strength of the Applicant’s claims;
·
The Respondents’ denial of adverse action and pregnancy discrimination in the FWA Employer’s Response dated
22 November 2012, despite having indisputable evidence in their possession indicating that such denials were untenable;
·The Respondents’ failure to attend the FWA conciliation without having a reasonable basis for the failure to attend;
·The Respondents’ denial of adverse action and pregnancy discrimination in their Response[32] to the Applicant’s Statement of Claim, despite having indisputable evidence in their possession indicating that such denials were untenable;
·
The Respondents’ failure to accept the Applicant’s
6 February 2013 settlement offer by 21 February 2013, which contained an offer to settle the dispute by payment of a lump sum of $86,124.05 to the Applicant plus $5,498.66 paid directly to the Applicant’s nominated superannuation fund. This settlement offer was significantly less than the Respondents could have anticipated having to pay the Applicant in compensation and penalties at the time should the matter have proceeded to trial and, in fact, was less than the Applicant was ultimately awarded in the judgment.[33]
[32] Response – General Federal Law filed 7 January 2013.
[33] Applicant’s Submissions filed 19 June 2014, pp.11-12 at para.24.
There was a final opportunity to settle the matter on 24 May 2013.
A mediation had been ordered by the Court and was scheduled for 10.15 a.m. on that day. The Second Respondent was admitted to hospital that day with asthma. Just before 10.00 a.m. on that morning, the Third Respondent called to cancel. Ultimately, the Respondents paid for the costs thrown away by the Applicant on that day.
The hospital records show that the Second Respondent presented with shortness of breath, wheezing and coughing. By 8.30 a.m., he was reported to be “Feeling good. Chest clear. No wheezing”.[34] The
Second Respondent was discharged at 11.30 a.m. and back at work at 12.00 noon. There is no explanation why the Respondents made no attempt to have the mediation later on that day.
[34] Transcript of Proceedings, 19 June 2014, p.17 at lines 32-33.
The Applicant submits that the Respondents made no offer of settlement until July 2013 when they offered $8,000.00. This was later increased in September to $20,000.00. Both offers were considered by the Applicant to be manifestly inadequate.
The Applicant submits that:
[T]he Court should calculate the Applicant’s entitlement to her costs from 26 October 2012, when the Respondents failed to respond to the Applicant’s letter of demand. Alternatively, it is submitted that the costs should be calculated from 22 November 2012, when the Respondents filed their FWA Employer Response and made denials that they must have (or should have) known were not supported by the evidence, or from 4 December 2012, when the Respondents unreasonably failed to attend the FWA conciliation.[35]
[35] Applicant’s Submissions filed 19 June 2014, p.12 at para.27.
With respect to the issue of indemnity costs, the Applicant submits that the:
·
Overwhelming evidence against the Respondents as at
25 October 2012;
·False allegations made against the Applicant; and
·Significant costs incurred by the Applicant and the public as a consequence of the Respondents unreasonable conduct,
support the Applicant’s costs being calculated on an indemnity basis.
It is open to the Court to consider without prejudice exchanges to determine whether the rejection of a settlement offer amounts to an unreasonable act or omission by which a party caused another party to incur costs for the purposes of s.570 of the Act.[36] The rejection of a favourable settlement offer at a time when the party had ample time to assess a claim can be unreasonable in circumstances where it would be unfair to require another party to bear costs for which it was not reimbursed.[37]
[36] See Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No.2) (2011) 205 IR 465.
[37] See Donnelly v Edelsten (1994) 49 FCR 384.
The Applicant referred the Court to several cases where the issue of indemnity costs arose. In Cugara v Frankston City Council
[2012] FCA 1299, Tracey J held that:
A deliberate decision to refuse a reasonable offer of settlement is a factor which would normally weigh more heavily in favour of a finding of unreasonable action than would a mere failure to respond by an unrepresented litigant.[38]
[38] [2012] FCA 1299, p.6 at para.31.
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, Woodward J stated that:
I believe that it is appropriate to consider awarding
“solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.[39][39] (1988) 81 ALR 397 at p.401.
The Applicant also referred the Court to the case of McDonald v Parnell Laboratories (Aust) (No.2) (2007) 164 FCR 591 where indemnity costs were ordered in the case of a failure to accept a reasonable offer of settlement. In that case, Buchanan J stated:
It would be unjust to deny the respondents indemnity costs, having regard to the terms of the offer, the outcome of the proceedings and the reasons for the result.[40]
[40] (2007) 164 FCR 591, p.598 at para.26.
The Applicant submits that:
As the Respondents unreasonably failed to respond to the Applicant’s settlement offer, and in circumstances where the Applicant incurred legal costs in obtaining a judgment significantly in excess of what was sought by way of settlement, it is submitted that the Respondents made an unreasonable act or omission which caused the Applicant to incur legal costs from
21 February 2013, and it is appropriate to award costs on an indemnity basis.[41]
[41] Applicant’s Submissions filed 19 June 2014, p.14 at para.35.
The Respondents’ case
The Respondents submit that they should not be ordered to pay costs in this matter because the preconditions in s.570(2) of the Act have not been met. The Respondents further submit that, even if the preconditions which enliven the discretion to award costs under s.570 are met, that discretion should not be exercised in this case. This is because the function of an award of costs under this section is clearly compensatory, not punitive. Given that the:
·Penalties in this matter ($61,000.00) were awarded to the Applicant;
·Decision to order that the penalties be paid to the Applicant was influenced by the fact that costs are not generally awarded in matters under the Act;
·Decision to award penalties has already taken into account the factors that may also influence the discretion to award costs; and
·Amount of the penalties exceeds the Applicant’s cost even when viewed on an indemnity basis,
awarding costs would involve double punishment for the Respondents and a windfall for the Applicant, who has already been compensated for pain and suffering and economic loss.[42]
[42] Respondent’s submissions filed 19 June 2014, pp.1-2 at paras.4-5.
The Respondents referred the Court to paragraph 379 of the substantive judgment:
The Respondents urged the Court to impose a small penalty, if any, on the basis that the business had suffered financially, and that the relationship between the parties had deteriorated significantly in the context of the discriminatory action. I have given consideration to those submissions. I am however persuaded that the fact that the Respondents consistently denied their liability and continue with a belief that the Applicant is the one at fault, cause me to consider that the penalties imposed should be meaningful ones and further, that in the circumstances of a case where costs are not an option, that the penalties should be paid to the Applicant.[43]
[43] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at p.108.
The Respondents submit that there were three broad issues at stake in the proceedings being whether:
·The Respondents had discriminated against the Applicant;
·There was a profit share agreement; and
·The Respondents had constructively dismissed the Applicant.[44]
[44] Respondent’s submissions filed 19 June 2014, p.3 at para.11.
The Respondents submit that:
Although the Respondents were unsuccessful in their claim that they had not discriminated against or constructively dismissed the Applicant, they were successful in defending the Applicant’s claim that there had been a profit share agreement. The Applicant claimed $2,239,275 in total economic losses, almost half of which resulted from the profit share claim. The claim that there was a profit share agreement involved a claim for ‘a third of the
post-tax profits of the photography business’ which was $130,000 per annum claimed until age 65. The Respondents’ defence of that allegation was a significant win that is broadly equal to the size (in monetary terms) of the Applicant’s win on the constructive dismissal point. There was a material amount of time spent on that aspect of the evidence, with all witnesses being examined and cross-examined on it. It was the main issue upon which the witness Mr Mcheileh was called and cross-examined. [45]
[45] Respondent’s submissions filed 19 June 2014, p.3 at para.12.
The Respondents submit that:
The vast majority of the damage that was found to flow from the discrimination was as a result of the constructive dismissal finding (as reflected in the judgment and as reflected in the size of the settlement sum sought by the Applicant). The case law in relation to constructive dismissal is not lacking in subtlety and fine distinction … the defence that the Respondents had not dismissed the Applicant was not so ‘devoid of merit, given the state of the authorities discussed in the substantive judgment, that it was unreasonable in the necessary sense’ to run it. In fact, the Respondents had more than a “merely arguable” case, and it is not unreasonable to run a “merely arguable” case.
Further, the findings of the Court in relation to all three issues were heavily dependent on issues of credibility, particularly on the issues of what motivated the actions of the Respondents and what their intentions were. If the Second and Third Respondents had been believed when they gave evidence about what motivated their actions and statements, the breaches would not have been made out.[46]
[46] Ibid, p.3 at paras.13-14.
With respect to the tape recordings, the Respondents submit that the existence of the recordings did not mean that the Applicant could prove the contents of those meetings as:
[T]he evidence of the contents of the meetings alone was not incontrovertible proof of the alleged breaches. This is because all of the breaches involved a mental element, which the Respondents denied was present. Further, there were a number of pivotal meetings and conversations that were not recorded, and the Respondents’ recollection of these conversations was very different from that of the Applicant.[47]
[47] Ibid, p.4 at para.15.
The Respondents submit that the defences they ran “were not bound to fail, and it is not “unreasonable” (in the specific sense developed through the jurisprudence in the context of this legislation and its predecessors) to run them”.[48]
[48] Respondent’s submissions filed 19 June 2014, p.4 at para.16.
The Respondents submit that:
[T]he offer made by the Applicant was based on her views of the likely success of her claim for $2.2 million economic loss and the Respondents’ various offers were based on their view of the prospects of that claim. The Respondents genuinely pursued settlement on what they considered was a reasonable basis. The Respondents’ rejection of the Applicant’s settlement offer was not “unreasonable” in the specific sense developed through the jurisprudence … The Respondents’ offers were made against the background of past awards made in similar cases, in which it is rare to see damages awards of the size, and covering the period of time, that this award involved.[49]
[49] Ibid, p.4 at para.17.
With respect to the claim concerning s.570(2)(c) of the Act,
the Respondents submit that, in order to claim costs under this section, the Court must find that the Respondents refused to participate in the FWA matter and that such refusal was unreasonable.
The Respondents submit that they did not refuse to participate in the FWA matter:
The filing of an Employer Response is an aspect of an employer’s participation, and cannot be used to ground [sic] costs on the basis of non-participation. The word ‘participation’ means ‘to take part in’. By filing an Employer Response the Respondents took part in the FWA processes, whatever criticisms the Applicant may have of the form that participation took.[50]
[50] Ibid, at para.20.
The Respondents sought to have the 3 December 2012 conciliation conference adjourned for a number of reasons including the unavailability of legal representatives. When it was adjourned for one day, the Third Respondent sought to have it further adjourned but this was rejected. The Third Respondent’s evidence was that she accepted that they had no choice as to the date of the conciliation and intended to attend.
The Respondents submit that the affidavit material shows that the Respondents had valid reasons for failing to attend the FWA conciliation and that they wished to participate in a further conciliation. The Second Respondent had to go to Geelong because his father was ill and the Third Respondent was of the view that she would not be able to meaningfully participate in the conciliation on that day:
Mr Kelly’s email of 4 December 2014 makes it clear that the Applicant made a decision to pursue her claim in the federal court system rather than participate in further conciliation. The refusal of the Applicant to consent to an adjournment because there was no medical evidence available at that time to support the request was unexpected given the emergency nature of the situation confronting the Second and Third Respondents. The non-attendance at the conciliation cannot be construed as a refusal to participate in those circumstances.[51]
[51] Respondent’s submissions filed 19 June 2014, p.4 at para.21.
With respect to the application for indemnity costs, the Respondents submit that such costs would ordinarily be paid on a party and party basis:
Although the refusal of a settlement offer may sometimes be such a feature, in this case the refusal of the offer … is itself the “unreasonable act” relied upon for enlivening the discretion to award costs in the first place, and cannot then also be the special feature relied upon to justify departing from the usual basis upon which costs are awarded in order to award costs on an indemnity basis. The case law in relation to the award of costs outside of the context of s 570 (and its predecessors), referring to an “unfettered discretion”, must be viewed with caution in this context, where the court’s discretion is clearly fettered by the legislation.[52]
[52] Ibid, pp.4-5 at para.22.
Conclusions
The history of the events which occurred after the Applicant announced her pregnancy is detailed in the substantive judgment. Following her resignation, the Applicant’s solicitors wrote to the Respondents on
11 October 2012 setting out the Applicant’s claim, and the basis of that claim, and inviting an offer of settlement. On 19 October 2012,
the Applicant provided the Respondents with the tape recordings of the conversations upon which she relied. The content of those recordings was extensively referred to in the judgment on the substantive issues and formed part of the evidence on which the findings were made that the Respondents had discriminated against the Applicant on the grounds of her pregnancy and that their conduct lead to her being constructively dismissed.
On 25 October 2012, the Respondents responded to the Applicant denying all liability. The Applicant then lodged an application with FWA under s.365 of the Act. On 20 November 2012, FWA set down the matter for a conciliation conference on 3 December 2012. On
22 November 2012, the Respondents lodged an Employer’s Response denying that the Applicant had been dismissed, and alleged poor performance by the Applicant.
On 23 November 2012, the Respondents sought an adjournment of the conciliation conference until after 28 January 2013. They cited as reasons:
·The unavailability of their Counsel;
·The Third Respondent’s “prior medical appointment”;
·The Second Respondent’s “all day photo shoot”; and
·That it was the First Respondent’s “busy season”.[53]
[53] Affidavit of Samantha Jane Sagona filed 23 July 2013, at Annexure ‘SJS-3’.
On 29 November 2012, FWA sent a notice adjourning the
conciliation conference until 1.30 p.m. on 4 December 2012.[54]
On 3 December 2012, the Respondents sent a second request for the conciliation conference to be rescheduled until after 28 January 2013 citing:
·“[F]inancial and production losses” for their business;
·“[O]bligations to (their) clients”;
·The disadvantage of not having their counsel available; and
·Not having “the time available to thoroughly put (their) case”.[55]
Fair Work Australia denied the request for the conference to be adjourned.
[54] Ibid, at Annexure ‘SJS-5’.
[55] Affidavit of Samantha Jane Sagona filed 23 July 2013, at Annexure ‘SJS-6’.
As previously stated, the Respondents contacted FWA at 11.37 a.m. on 4 December 2012 to say that the Second Respondent could not attend the conference because of an “emergency health matter” concerning his father.[56] The request for an adjournment was refused and the
Third Respondent was advised to attend the conference and that she was free “to make the case to his Honour that the matter should be adjourned to later date”.[57] At 12.25 p.m., the Third Respondent notified FWA that “we will not be attending the conciliation today”.[58] As a result, FWA issued a certificate under s.369 of the Act enabling the Applicant to proceed with an application in this Court.
[56] Affidavit of Christine Mary Piccoli filed 18 June 2014, at Annexure “CMP-2”.
[57] Affidavit of Samantha Jane Sagona filed 23 July 2013, at Annexure ‘SJS-9’.
[58] Affidavit of Christine Mary Piccoli filed 18 June 2014, at Annexure “CMP-2”.
The Applicant adduced certain affidavit evidence to support a contention that the Respondents had a deliberate plan to avoid engaging in the proceedings until after the new year. This was denied by the Third Respondent in affidavit evidence in reply. None of this evidence, by agreement, was subject to cross-examination.
On 17 December 2012, the Applicant filed her claim in this Court seeking $151,690.90 in compensation.[59] In their Response, the Respondents denied all liability.[60] The Applicant made an offer of settlement on 6 February 2013 for $71,622.71 in compensation and $20,000.00 in lieu of penalties.[61] The Respondents made no offer until
3 July 2013 when an offer of $8,000.00 was made.[62] This was later increased to $20,000.00 on 2 September 2013.[63]
[59] Statement of Claim filed 17 December 2012, at p.11.
[60] Response – General Federal Law filed 7 January 2013.
[61] Affidavit of Joseph Patrick Kelly filed 28 May 2014, at Annexure ‘JPK-7’.
[62] Ibid, p.4 at para.19.
[63] Ibid, at Annexure ‘JPK-10’.
The judgment of the Court awarded the Applicant a total of $174,097.00 in compensation and imposed penalties on the Respondents totalling $61,000.00.[64]
[64] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at p.4.
The s.570(2)(b) claim
Section 570(2)(b) of the Act provides an avenue for the Court to award costs in cases where the Court is satisfied that a party’s “unreasonable act or omission”[65] caused the other party to incur costs. It is an exception to the general rule that in proceedings under the Act, each party bears their own costs. It is not sufficient that a litigant has been successful in either prosecuting or defending an action.
[65] Fair Work Act 2009 (Cth), s.570(2)(b).
In this case there were a range of matters in contention between the parties. As noted in the substantive judgment, the Respondents consistently denied their liability and persisted with the untenable position that the Applicant was the one at fault. Having heard the tape recording of the conversations between the Applicant and the
Second and Third Respondents,[66] I have difficulty in accepting that the Respondents could not have been aware that there was a prima facie case of discrimination on the grounds of the Applicant’s pregnancy. Given the provisions of ss.360 and 361 of the Act, the Respondents must have been aware that they would have some difficulty in establishing that the pregnancy was not a reason, if not the only reason, for their actions.
[66] Exhibits A2, A3, A4, A5, and A8.
Further, the variation document, on any objective reading of its contents, was a repudiation of the Applicant’s contract of employment. While I accept that each case of constructive dismissal must be determined on its own facts and the Court found that the Respondents had engaged in a course of conduct leading up to the Applicant’s resignation, the repudiation of the Applicant’s contract was a significant element of that conduct.
The Respondents place emphasis on the Court’s rejection of the claim that there was a profit share agreement. That was not a major element of the case and one which essentially went only to the issue of compensation. The letter of offer sent to them on 6 February 2013 expressly excluded from the proposed settlement amount any claim with respect to the profit share. It was not an issue which affected either liability or the amount of compensation ordered by the Court.
The Respondents were given several opportunities to settle this matter on terms significantly more favourable than the amount ordered by the Court. The Third Respondent failed to attend the conciliation conference and also the mediation. On 4 December 2012, it is the unchallenged evidence that the Applicant was prepared to settle for $50,000.00 to $80,000.00. On 6 February 2013, an offer of settlement was made for less than $92,000.00 which included an amount for penalties. While the Second Respondent was ill with asthma on
24 May 2013, which was the date scheduled for the mediation, there was no appearance on that day by either the First or Third Respondent. A further opportunity to resolve the matter was therefore lost. The trial ran for three days.
I am satisfied that the unreasonable conduct of the Respondents in this matter caused the Applicant to incur costs within the meaning of s.570(2)(b) of the Act.
The s.570(2)(c) claim
I am unaware of other cases where the application of s.570(2)(c) of the Act has been considered. It is clear from the Explanatory Memorandum that the object of the provision is to encourage genuine participation in matters before FWA (now FWC) and to promote quicker and more efficient resolutions of disputes. The Respondents did not dispute that the matter before FWA arose out of the same facts as the proceedings before the Court.
The scheme of the Act requires that an applicant who alleges a dismissal which is in contravention of the general protections in Chapter 3 of the Act must first make an application to FWA for FWA to deal with the dispute before making an application to the Court.
Both the application to FWA and the application and statement of claim in this Court in these proceedings clearly arose out of the same facts.
There is no doubt that as the application had been lodged the “matter”[67] was before FWA. The matter was also a proceeding under a workplace law for the purposes of s.341 of the Act.[68] I accept the Respondents’ submission that the filing of an Employer’s Response which challenged the basis of the Applicant’s claims was not
an unreasonable refusal to participate in the matter. Indeed, it was a requirement of the FWA rules that the Respondents lodge an Employer’s Response.
[67] Fair Work Act 2009 (Cth), s.570(2)(c).
[68] Ibid, s.341(2)(a).
The failure to participate in the conciliation conference on
4 December 2012, however, is a different matter. The conference was a proceeding under a workplace law. The Respondents made two applications to have the conference adjourned, both of which were rejected by the presiding Member. The Second Respondent may well have had a reason for his failure to participate in the conference on
4 December 2012 but the same cannot be said of the Third Respondent. The Third Respondent was a Director of the First Respondent and a manager of the business. She was also a Respondent in her own right. The Third Respondent had an intimate knowledge of the business and of the issues relevant to the conciliation. From my observations of her in the witness box, she was perfectly capable of expressing her views and participating in the proceeding.
The Third Respondent was advised that she should attend and was given the option of making an application for an adjournment in person. The Applicant also agreed that she could attend by telephone if necessary. Her response was to notify the tribunal that “we” would not be attending.[69] I am satisfied that the actions of the Third Respondent amounted to an unreasonable refusal to participate in the proceedings before FWA. It is not necessary for me to consider the
Third Respondent’s motivations for that refusal. The upshot was that an opportunity to settle the matter on what turned out to be very reasonable terms was lost.
[69] Affidavit of Christine Mary Piccoli filed 18 June 2014, at Annexure “CMP-2”.
The claim for indemnity costs
It is clear that nothing in the Act precludes the awarding of indemnity costs once the preconditions set out in s.570 of the Act are met. As the judgments referred to earlier in this decision show, an award of indemnity costs may be made for a range of reasons. I refer,
in particular, to the reference of Judge Lucev in Genovese with respect to the objects of :
·Encouraging savings of private costs and avoidance of inherent risks, delays and uncertainties of litigation;
·Saving public cost necessarily incurred in litigation which events demonstrate to have been unnecessary; and
·Indemnifying one party where the real cause and occasion of the litigation is the attitude adopted by the other party.[70]
[70] [2007] FMCA 601, pp.13-14 at para.47. See also Rouse v Sheperd [No.2] (1994) 35 NSWLR 277 at 279 and 281 per Badgery-Parker J.
I would add to those objects the emphasis which statute law,[71] and in particular in this case the Act, places on the use of alternative dispute resolution in civil litigation.
[71] See Civil Dispute Resolution Act 2011 (Cth); Federal Circuit Court Act 1999 (Cth), Part 4 - Dispute resolution for proceedings other than proceedings under the Family Law Act 1975.
The Applicant’s submissions with respect to indemnity costs relied on three factors:
·
The overwhelming evidence against the Respondents as at
25 October 2012;
·The false allegations against the Applicant; and
·The significant costs incurred by the Applicant and the public as a consequence of the Respondent’s unreasonable conduct.
Given that the discretion to award costs under s.570 of the Act is an exception to the general rule in Fair Work matters that each party bears their own costs, it may not be sufficient that, once an “unreasonable act or omission”[72] of a party is established, this would automatically justify that such costs should be awarded on an indemnity basis. I note, however, the view expressed by Jessup J in Shea v Energy Australia Services Pty Ltd (No.7) [2014] FCA 1091:
I cannot think of any good reason why a party whose costs have been inflated by an unreasonable act on the part of some other party, and who succeeds in the case on the issue to which the act was relevant, should have to fund the difference between the costs which are in fact incurred and the costs which would be allowable as between party and party.[73]
[72] Fair Work Act 2009 (Cth), s.570(2)(b).
[73] [2014] FCA 1091, p.20 at para.66.
In this matter, it is not just the unreasonable conduct of the Respondents but the opportunities thrown away to settle the matter by the processes of conciliation and/or mediation which, in my view, would justify an award of costs on an indemnity basis.
The exercise of the Court’s discretion
The substantive application in this matter involved an application under s.359 of the Act. Under the provisions of s.545 of the Act, if the Court is satisfied that a person has contravened a civil remedy provision,
the Court may order remedies which include “an order awarding compensation for loss that a person has suffered because of the contravention”.[74] In addition, under the provisions of s.546 of the Act, the Court may order a person to pay a pecuniary penalty. Section 546(3) of the Act provides that the pecuniary penalty, or a part of the penalty, may be paid to a particular person. Both the payment of compensation and the imposition of a pecuniary penalty are matters for the discretion of the Court. To whom the pecuniary penalty is paid is also a matter of the Court’s discretion.
[74] Fair Work Act 2009 (Cth), s.545(2)(b).
While, in the substantive judgment, the Court did not refer in any detail to the reasons for the exercise of the discretion to direct that the penalty payments be made to the Applicant, the Court did refer to “circumstances … where costs are not an option”.[75] In McIlwain
v Ramsey Food Packaging Pty Ltd (No.4) (2006) 158 IR 181, Greenwood J stated, in considering similar provisions under the Workplace Relations Act:The qualification upon the exercise of the power is that such an order ought not to be made if it will result in a windfall gain.
Such a windfall might arise in circumstances where the party receiving the benefit of the order has already received compensation pursuant to s 298U both as to any economic loss in respect of the contravention and any non-economic loss in the nature of general damages.[76]
[75] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875, p.108 at para.379.
[76] (2006) 158 IR 181, p.218 at para.103.
In Murrihy v Betezy.com.au Pty Ltd (No.2) (2013) 221 FCR 118, Jessup J referred to the discussion of the concept of a windfall gain in the joint judgment of Branson and Lander JJ in Plancor Pty Ltd
v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 (“Plancor”). In Plancor, their Honours had referred to the cost of bringing legal proceedings and suggested that “[b]efore a penalty could constitute a “windfall” in the relevant sense it would need to exceed the total amount of that cost by a significant margin”.[77][77] (2013) 221 FCR 118, p.149 at para.115.
His Honour Jessup J went on to say:
[T]heir Honours’ treatment of the “windfall” point is consistent with it being appropriate to take into account the costs and expenses to which the applicant, as applicant, has obviously been exposed in the assertion of her contractual and statutory rights in the proceeding.[78]
[78] Ibid, p.150 at para.116.
It was to this principle that the Court was averting in the decision to have all of the penalty payments made to the Applicant in this matter.
His Honour did go on to say:
That is not to suggest that the s 546(3) discretion should be exercised in a way that provides a substitute for costs which are unavailable under s 570, but, where there have clearly been such costs and expenses, it may serve to counter any suggestion that the applicant would walk away from the case with a “windfall” or “profit”.[79]
[79] Ibid.
Equally, where the Applicant had had the benefit of an order for the payment of a penalty imposed by the Court to her, where the costs to her of enforcing her statutory rights have been taken into account in the making of that order, the Applicant ought not to be seen to be walking away with a ‘windfall’ or ‘profit’ because she also receives an order for costs under s.570 of the Act.
In this matter, the Applicant received compensation for both economic and non-economic loss. The Court also ordered that penalty payments in the sum of $61,000.00 should be paid to her. The application for costs seeks an amount of around $30,000.00. I am satisfied that payment to the Applicant of the sum of $61,000.00 by way of penalty payments will more than compensate her for her legal costs and, on that basis, I should not exercise my discretion to award costs in this matter.
I certify that the preceding eighty-nine (89( paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 16 December 2014
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