The trustee for YMM family trust v Madeline Harrison

[2024] FWC 2769

[2024] FWC 2769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.400A - Application for a costs order against a party

The trustee for YMM family trust
v

Madeline Harrison

(C2024/6737)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 OCTOBER 2024

Application for costs under ss 400A and 401 – application dismissed

1. The trustee for the YMM family trust (YMM) has made an application for costs against Madeline Harrison in connection with an unfair dismissal application made by Ms Harrison under s 394 of the Fair Work Act 2009 (Act). The costs application is made under ss 400A and 401 of the Act. Parties must generally bear their own costs in relation to a mater before the Commission (see s 611(1)). However, in an unfair dismissal matter, s 400A allows the Commission to make a costs order if one party has caused the other party to incur costs ‘because of an unreasonable act or omission’ in connection with the conduct or continuation of the matter. Section 401 allows the Commission to award costs against a party’s lawyer or paid agent if that person behaved unreasonably as contemplated by s 401(1A).

1. YMM’s application for costs does not identify any grounds on which the Commission should be satisfied that s 400A or s 401 is engaged in this case. It simply refers to those sections and describes various costs that are said to have been incurred by YMM. The costs application has no merit. Ms Harrison and YMM settled the unfair dismissal application to which the costs application relates. I cannot identify any basis for YMM to assert that it incurred costs because of any unreasonable act or omission by Ms Harrison in connection with the conduct or continuation of her application. Ms Harrison’s claim that she had been unfairly dismissed was at least arguable. She did not behave unreasonably in connection with the conduct or continuation of her application. The requirements of s 400A are not made out. Further, s 401 is not applicable in this case because Ms Harrison did not engage a lawyer or paid agent. For these reasons, the costs application was dismissed.

DEPUTY PRESIDENT

Appearances:

Y. Mensa for the trustee for YMM Family Trust
M Harrison for herself

Hearing details:

2024
Melbourne (by telephone)
4 October

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