The trustee for YMM family trust v Madeline Harrison Summary

[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

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).

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The trustee for YMM family trust v Madeline Harrison, the trustee for the YMM family trust (YMM) sought a costs order against Madeline Harrison under sections 400A and 401 of the Fair Work Act 2009. This application arose from an unfair dismissal claim that Ms Harrison had made against YMM, which was settled prior to the costs application being heard. The dispute came before the Fair Work Commission, where Deputy President Colman was tasked with determining whether the costs incurred by YMM were due to an unreasonable act or omission by Ms Harrison, and whether Ms Harrison's conduct warranted a costs order under the relevant sections of the Act.

The primary legal issues before the Deputy President were whether YMM could substantiate its claim that it had incurred costs due to Ms Harrison's unreasonable act or omission, and if Ms Harrison's conduct warranted costs under section 401. The Deputy President examined whether the claim was arguable and if Ms Harrison's conduct could be deemed unreasonable. It was necessary to determine if the statutory requirements of sections 400A and 401 were met for a costs order to be made.

Deputy President Colman dismissed the application for costs. The Deputy President found that YMM had not identified any grounds on which the Commission should be satisfied that sections 400A or 401 were applicable. The settlement of the unfair dismissal claim meant there was no basis for YMM to assert that it incurred costs due to any unreasonable act or omission by Ms Harrison. Additionally, Ms Harrison's claim of unfair dismissal was deemed at least arguable, and she did not engage a lawyer or paid agent, thus section 401 was not applicable. Consequently, the application for costs was dismissed as it did not meet the statutory requirements.

The final orders of the Deputy President were that the application for costs under sections 400A and 401 of the Fair Work Act 2009 was dismissed.

The trustee for YMM family trust v Madeline Harrison

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established