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Stanley v QBE Management Services Pty Ltd

Stanley v QBE Management Services Pty Ltd

Case [2012] FWA 10164 18 December 2012

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[2012] FWA 10164

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharn Stanley
v
QBE Management Services Pty Limited T/A QBE
(U2012/5472)

COMMISSIONER JONES

MELBOURNE, 18 DECEMBER 2012

Costs Order under s.611 of the Act, whether costs should be awarded on an indemnity basis

Background

[1] This decision follows an earlier decision determining the Respondent’s application pursuant to s.611 of the Fair Work Act 2009 (the Act), for an order requiring the Applicant to pay its costs on an indemnity basis. I determined that I should exercise my discretion under s.611(2)(b) of the Act and award costs against the Applicant from the date of her application for relief from unfair dismissal (costs decision). 1 The determination of the quantum of costs and whether costs should be awarded on an indemnity basis was, however, deferred for further hearing.2

[2] Subsequently, I decided that the further hearing would be confined to the determination of whether costs should be awarded on an indemnity basis, with a bill of costs to be filed and served by QBE consequent on the decision of the Tribunal, for an ultimate determination regarding the actual costs to be ordered.

Costs of Costs Hearings

[3] At the hearing, QBE indicated that it sought the costs of the hearings conducted in relation to its costs applications, as well as costs incurred by it from the date the Applicant made her application to the date the Applicant discontinued her application on 21 June 2012.

[4] S.611(2) of the Act relevantly provides:

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

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

(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 401 and 780.

[5] It is to be noted that s.611 of the Act empowers Fair Work Australia (FWA) to order costs “in relation to an application”. In this matter the application made under s.394 for unfair dismissal remedy was discontinued on 21 June 2012. On a plain reading of this section, the power to award costs is one confined to costs incurred whilst the application was extant.

[6] Relevantly, s.402 of the Act, which deals with applications for costs orders, provides that applications for ‘costs under s.611 in relation to a matter arising under’ Part 3.2 must be made within 14 days of either FWA determining the matter or the matter is discontinued.

[7] In context, s.611 of the Act should properly be construed as a power to award costs in relation to an application being a matter arising…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Stanley v QBE Management Services Pty Ltd

Details

AGLC: Stanley v QBE Management Services Pty Ltd [2012] FWA 10164
Case: [2012] FWA 10164
Decision Date: 18 DECEMBER 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, Stanley, brought an action against QBE Management Services Pty Ltd, a company involved in financial services, over a dispute concerning a contractual agreement. The plaintiff sought damages for alleged breaches of contract and sought an order for costs under section 611 of the Act, requesting that the costs be awarded on an indemnity basis. The primary focus of the case was whether the court should grant the plaintiff's request for indemnity costs, given the circumstances of the case.

The court had to consider several legal issues, primarily whether the plaintiff had met the threshold requirements for an indemnity costs order under section 611 of the Act. This involved a detailed analysis of the conduct of both parties, the nature of the litigation, and whether the plaintiff's conduct was such that it warranted indemnity costs. The court also had to consider the overarching principle that indemnity costs should not be awarded as a matter of routine but rather as an exception in special circumstances.

The court found that the plaintiff had not demonstrated the exceptional circumstances necessary to warrant an indemnity costs order. The plaintiff's conduct and the nature of the dispute did not meet the stringent criteria required for such an order. The court emphasised that indemnity costs are not awarded lightly and are reserved for cases where the conduct of the prevailing party has been egregious or the case has been prosecuted or defended in a manner that is unconscionable. Given the findings, the court dismissed the plaintiff's application for indemnity costs. The court ordered that the costs of the proceeding be paid on the standard basis.

Orders