Zoe Zelman v Jordan Development Pty Ltd

[2020] FWC 2778

[2020] FWC 2778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoe Zelman
v
Jordan Development Pty Ltd
(U2019/9862)

DEPUTY PRESIDENT MASSON MELBOURNE, 1 JUNE 2020

Application for costs pursuant to s 400A.

Introduction

[1] On 3 September 2019, Ms Zoe Zelman (the Applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Jordan Development Pty Ltd T/A Billboard Media (the Respondent).

[2] The Applicant was found to have been unfairly dismissed in a decision 1 issued on 2 January 2020 (the Merits Decision). In a subsequent decision2 issued on 24 February 2020 (the Remedy Decision) I determined to award the Applicant a remedy of compensation and ordered3 (the Order) that she be paid $21,422.31 by the Respondent.

[3] The Applicant now seeks an order for costs against the Respondent pursuant to s. 400A of the Act. The costs application is validly made having been filed by the Applicant on 9 March 2020 and so is within the 14 days 4 after the Remedy Decision and Order were issued.

Background to the costs application

[4] In the Form F2 – Unfair Dismissal Application (Form F2) the Applicant alleged that she was notified of her dismissal by email on 13 August 2019 while she was on sick leave. She claimed that she had received an email from the Respondent on that day confirming that she had resigned. She denied having resigned.

[5] The Respondent failed to file a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) in response.

[6] On 4 October 2019, a telephone conciliation conference of the parties was conducted before a staff member of the Commission but failed to resolve the matter.

[7] On 14 October 2020, the matter was allocated to my chambers following which a telephone mention hearing was conducted on 17 October 2019 to which the Applicant and the Respondent’s HR Manager Mr Greg Raines attended.

[8] On 18 October 2019, a notice of listing and directions for the arbitration hearing were issued. The notice of listing stated that the hearing would be conducted on 20 December 2019.

[9] The Applicant filed her submissions and materials in support of her application on 19 November 2019 and the Respondent filed its submissions and materials in reply on 9 December 2019.

[10] On 11 December 2019 a member assisted conciliation of the matter was conducted by Deputy President Colman. Consistent with the position it had adopted in and following the initial telephone conciliation conference, the Respondent according to Mr Raines remained unwilling to consider a financial settlement. The matter was not resolved at the conference.

[11] What then followed was an exchange of correspondence between the Commission and the Respondent regarding its attendance at the hearing listed for 20 December 2019 and also the attendance of Respondent’s Director Mr Randall Shreeve who was ordered to appear. That exchange of correspondence was detailed in the Merits Decision and is reproduced as follows;

“[15] The Respondent wrote to my Chambers on 13 December 2019 requesting that the matter be adjourned.  In a response sent to the Respondent on my behalf by my Chambers on 16 December 2019, that request for an adjournment was declined. It was made clear in the correspondence to the Respondent that the matter was originally listed for arbitration in correspondence sent to parties on 18 October 2019.  Simply stated, the Respondent had two months' notice of the hearing date of 20 December 2019.

[16] Confirmation was provided to the Respondent in that correspondence that the Director of the company, Mr Randall Shreeve was required to attend the hearing and confirmation was sought from the Respondent that he would be attending. It was foreshadowed in that correspondence that in the absence of confirmation from the Respondent that the director would be attending, it was my intention to issue an order for Mr Randal Shreeve to appear.  No such confirmation was provided by the Respondent.

[17] Further correspondence was received from the Respondent on 19 December 2019 again urging that the matter be adjourned.  It set out various reasons why it sought the adjournment but simply stated, it was claimed to be due to business and operational requirements that would prevent the attendance of representatives of the company. In response to that correspondence my Chambers again wrote to the Respondent and advised that after considering the Respondent's further request for an adjournment of proceedings that request was declined. 

[18] Prior to that correspondence having been received from the Respondent on the 19 December 2019, the Commission had issued orders on 18 December 2019 for Mr Randal Shreeve to attend the proceedings. The Respondent’s correspondence to my Chambers on 19 December 2019 also requested that the order for Mr Shreeve to attend be revoked. That request was also declined.

[19] My Chambers again stated on my behalf the reasons why the Respondent’s requests were declined.  They were; the Respondent was notified of the hearing listing in correspondence dated 18 October 2019, the Respondent had eight weeks' notice of the hearing and had had ample opportunity to prepare its case or seek an adjournment at an earlier point in time. Furthermore, a delay in the hearing would, because of the schedule of my matters in the new year, have delayed the proceedings until at least early February 2020.  In my view, such a delay would have unreasonably prejudiced the Applicant.  It was confirmed to the Respondent in that correspondence that the hearing would proceed at 10am on 20 December 2019 as listed.

[20] Further correspondence was received, from the Respondent, at 8.45 am on 20 December 2019 advising with regret that the workflow of the Respondent made it impossible for it to attend the arbitration hearing that day. In response to that correspondence at 9.17 am on 20 December 2019 the Commission again wrote to the Respondent and advised as follows:

“Section 677 of the Fair Work Act provides that a failure of a person to attend before the Fair Work Commission, where so ordered, is an offence, under the Fair Work Act, which carries a penalty of imprisonment of up to six months.”

[21] Mr Shreeve, it was noted in the correspondence, had been ordered to attend the proceedings.  It was also drawn to the Respondent's attention that section 600 of the Act also allows the Fair Work Commission to determine a matter in the absence of a person who has been required to attend before it.

[22] Finally, it was again confirmed that the adjournment request was declined and that the matter would proceed to be heard and determined. The fact that Mr Shreeve was ordered to attend the proceedings but did not attend is a matter that will be referred to the General Manager of the Fair Work Commission for appropriate investigation and if deemed necessary, further action.” 5

[12] On 20 December 2019 the hearing proceeded despite the Respondent and Mr Shreeve failing to attend. The Applicant appeared on her own behalf. At the conclusion of the hearing an Ex-Tempore decision was rendered and the Merits Decision reflecting that was subsequently published on 2 January 2020. The Merits Decision stated that a separate hearing would be required in relation to the question of the remedy, if any, to be awarded for the unfair dismissal and that directions would be issued relating to the filing of submissions and other materials for the hearing concerning the question of remedy.

[13] On 2 January 2020 the Respondent filed an appeal in respect of the interlocutory decisions made by me to reject the adjournment request relating to the hearing of 20 December 2019 and, second, the order issued for Mr Shreeve to attend the hearing on 20 December 2019. The appeals were listed to be heard by a Full Bench on 2 March 2020.

[14] On 2 January 2020 I issued directions for the filing of submissions and materials in relation to the question of remedy and listed the matter for hearing on 13 February 2020.

[15] On 7 January 2020 the Respondent wrote to my chambers and requested that the directions issued in relation to the hearing on the question of remedy on 13 February 2020 be stayed or adjourned pending resolution of the appeal referred to at [13] above. I declined that request.

[16] On 8 January 2020 the Respondent filed a further appeal in respect of my decision to refuse their adjournment request of 7 January 2020. In doing so the Respondent sought a stay of the decision to refuse to vacate the directions pending the hearing and determination of the appeal. The stay hearing was conducted by Vice President Hatcher on 24 January 2020 at the conclusion of which an Ex-Tempore decision was issued declining to grant the stay. A decision (the Stay Decision) reflecting that was subsequently published on 31 January 2020 6. The Respondent subsequently withdrew its appeals in relation to the above-referred interlocutory decisions made by me in the matter.

[17] On 21 January 2020 the Applicant filed submissions and materials in relation to the question of remedy. The Respondent failed to file any submissions or materials in reply.

[18] On 13 February 2020 the hearing on the question of remedy was conducted at which the Applicant appeared on her own behalf and Mr Raines appeared for the Respondent. The Remedy Decision and Order were subsequently issued on 24 February 2020.

[19] On 9 March 2020 the Applicant filed a costs application and directions for the filing of submissions and materials in relation to that costs applications were issued by the Commission that same day. A hearing in relation to the costs applications was then conducted on 28 May 2020, in advance of which the Applicant filed submissions and materials. The Respondent failed to file any submissions or materials in reply. The Applicant again appeared on her own behalf at the costs hearing while Mr Raines appeared for the Respondent.

[20] On May 15 2020 the Commission received correspondence from the Fair Work Ombudsman (FWO) advising that the Remedy Decision and Order incorrectly named the Respondent as ‘Billboard Media’ whereas the correct legal identity was that of ‘Jordan Development Pty Ltd’, the error being attributable to the Respondent’s failure to file an F3 as required. Corrections to the Remedy Decision and Order correctly identifying the Respondent as ‘Jordan Development Pty Ltd’ were issued on 18 May 2020. The reason for the FWO’s involvement was due to the Respondent’s failure to comply with the Order for compensation.

Basis for costs application and submissions

[21] As stated above, the application for costs by the Applicant was filed pursuant to s. 400A which states as follows

“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.”

[22] The Applicant submits that she has incurred costs because of a pattern of vexatious conduct of the Respondent that has included;

•  Failing to make or respond to any settlement proposals;

•  Failing to defend the allegations of the manner of her dismissal;

•  Failing to attend the hearing on 20 December 2019 and ignoring an order issued by the Commission for Mr Randall Shreeve to appear at that hearing;

•  Engaging in conduct designed to prolong the process including the lodging (and withdrawal) of frivolous appeals; and

•  Failing to comply with the Order for compensation.

[23] A Tax Invoice prepared by the Applicant’s representative Mr Ken Mistica of ‘HR Division’ dated 15 April 2020 was furnished as evidence of the costs the Applicant had incurred. The Tax Invoice itemised the following costs;

(i) Item 010 – Fair Work commission – Phone Conciliation (x1) - $750

(ii) Item 001 – Fair Work Commission – Hearing Appearance (x2) - $3060

(iii) Item 004 – Letter to employer (x1) - $190

(iv) Item 002 – Preparation of particulars - $1100

(v) Item 005 – Appeal advice – various consultations - $1200

(vi) Item 011 – Complaint to Ombudsman – Failure to pay - $1,100

[24] The above costs total $7,000 GST inclusive and a further description of the professional fees was provided on the Tax Invoice in the following terms;

“Professional fees

Dear Zoe, a further explanation of the items above; Phone conciliation appearance by myself on 17/10/19. Attendance at fair Work Commission hearings. Ellen Cameron from our office attended hearing with you on 11/12/19. Kate Fitzsimmons from our office attended hearing with you on 20/12/19. Preparation of particulars includes your application and all subsequent document preparation requested by the Fair Work Commission. We have sent several letters to your employer since the Commission final decision, however we are happy to wave those fees and only charge you for the letter we authorised after the phone conciliation. It was unfortunate the commission orders were appealed and/or ignored by the respondent. Item 5 relates to consultations you required due to vexatious behaviour of the respondent in appealing. Similarly, you have incurred further fees in chasing the compensation ordered by the Commissioner. This includes preparing further particulars for a complaint to the Fair Work Ombudsman.”

[25] Mr Raines denied that the Respondent’s actions had caused any additional costs to be incurred by the Applicant. Rather, he argued that any costs incurred were due to the way the Commission dealt with the application. He acknowledged that an offer to settle the matter had been made by the Applicant’s representative following the initial telephone conciliation conference and that the proposed settlement offer was initially for three week’s pay. That offer was declined by the Respondent. According to Mr Raines no counter proposal was made by the Respondent at any stage of the conduct of the matter.

Consideration

[26] Section 400A was inserted into the Act by virtue of the Fair Work Amendment Act 2012. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 stated:

“Parts 3 and 4 of Schedule 6 to the Bill enhance the FWC’s ability to order costs against a party and/or their representative in unfair dismissal matters. The new ‘party costs’ provision applies where a party to an unfair dismissal matter (either an employee or employer) has caused the other party to incur costs by an unreasonable act or omission. Under section 401 of the FW Act, lawyers and paid agents may currently be exposed to costs orders if FWA has granted permission for a person to be represented in an unfair dismissal matter. The Bill will provide for the FWC to order costs against a lawyer or paid agent whether or not the FWC has given permission for a person to be represented.

The amendments strike a balance between the need to protect workers from unfair dismissal, and to provide a deterrent against unreasonable conduct during proceedings. The amendments will enable costs orders to be more easily made in the case of unreasonable conduct but will not prevent genuine claims from being pursued. They will discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner. These measures are reasonable and proportionate to address the time and expense that an unreasonable conduct by a participant and/or their representative may cause another party to incur” 7 (my emphasis added).

And

168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.

169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.” 8

[27] Section 400A was considered by Commissioner Bissett in Sidney v Employsure Pty Ltd (Sidney). 9  The Commissioner summarised various authorities considered in Roy Morgan Research Ltd v Baker (Roy Morgan)10in the following manner:

“[28] The authorities relevant to a consideration of the phrase ‘unreasonable act or omission’ were considered in the decision of the Full Bench in Roy Morgan Research v Baker. I do not repeat those provisions here but note the following can be taken from those authorities:

•  A failure to inform another party of an inability to attend proceedings would be, if intentional, unreasonable and if accidental, an unreasonable omission;

•  a failure to advise the other party of the first party’s intentions, if deliberate or reckless, would be unreasonable and if an omission could be equally unreasonable;

•  very strong prospects of success will not always justify a failure to participate in settlement negotiations;

•  a reasonable person will determine if and how to respond to an offer of settlement after considering all of the circumstances of the case including the terms of settlement in relation to the relief sought; the relative strength of the parties cases; the likely length and cost of proceeding to hearing if the matter does not settle; and adverse consequences of acceptance of a settlement rather than prosecuting or defending the primary application.”

[28] Of further relevance is the Full Bench decision in Gugiatti v SolarisCare Foundation Ltd 11(Gugiatti) where it stated that s.400A of the Act “is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.”12

[29] The Full Bench also relevantly stated:

“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.” 13

[30] Section 400A of the Act provides that costs may be awarded to the Applicant if I am satisfied that the costs she claims were incurred as a result of an unreasonable act or omission of the Respondent in connection with the conduct or continuation of the Applicant’s unfair dismissal application. However, even if I am satisfied that the relevant circumstances exist, I am not obliged to order costs. It is a discretionary decision. The legislative intent behind s.400A was that the power to award costs is to be exercised only in clear cases of unreasonable conduct.

[31] I turn firstly to the conduct of the Respondent and whether it engaged in an unreasonable act or omission. The Respondent’s conduct is considered below.

[32] The Respondent failed to file an F3 in response to the application for unfair dismissal. It participated in an initial telephone conciliation conference on 4 October 2019 following which it received and rejected (without a counter proposal) a settlement offer from the Applicant’s representative of three week’s pay. It is trite to observe that the reasonableness of that rejected settlement offer can now be seen in the context of the final compensation amount awarded to the Applicant of $21,422.31, which equates to approximately 20 week’s pay.

[33] Prior to the filing of material in advance of the merits hearing on 20 December 2020 it may be accepted that the Respondent’s position of declining to settle the matter, referred to above, was not unreasonable. It was entitled to resist the application and file material in defence of its position. However, once both parties had filed their material by 9 December 2019, any resistance by the Respondent to participate and respond to reasonable settlement proposals constituted an unreasonable act or omission in my view. I say this because of the threadbare nature of the submissions and evidentiary material filed by the Respondent on 9 December 2019.

[34] Notwithstanding its weak position based on the filed material, the Respondent participated in the member assisted conciliation conference on 11 December 2019 but was unwilling to consider a financial settlement. A failure of the Respondent to reconsider its position on settlement of the matter in light of the materials filed by both parties constituted an unreasonable act or omission of the Respondent in the conduct of the matter.

[35] Compounding the weakness of the Respondent’s filed material to which I have referred to above, it then failed to attend the hearing on the 20 December 2019 despite my rejection of its adjournment requests and despite an order having been issued for its Director Mr Randall Shreeve to appear. The non-attendance of the Respondent and Mr Shreeve at the hearing on the 20 December 2019 also constituted an unreasonable act or omission in the conduct of the matter before me.

[36] Following the handing down of the Merits Decision on an Ex-Tempore basis on 20 December 2019 which was published on 2 January 2020, the Respondent then sought to appeal various interlocutory decisions made by me in the conduct of the matter. Significantly, at no stage did the Respondent seek to appeal either the Merits Decision or Remedy Decision and, in any case, the various interlocutory decision appeals were withdrawn.

[37] While those appeals may have been designed to delay and frustrate the conduct of the matter rather than attack the substantive Merits Decision, the filing of those appeals are not matters that are relevant to the costs application before me. That is because the costs application before me is one made under s 400A which only applies in respect of matters arising under Part 3-2 of Division 5 of the Act. The appeals filed by the Respondent, while related to the matter before me, were applications made under Part 5-1 Division 3 of the Act and are therefore outside the scope of s 400A.

[38] Similarly, the costs incurred by the Applicant in pursuing the Respondent for payment of the compensation required under the Order are not costs incurred in the conduct of the matter before me therefore cannot be considered. While the Respondent’s conduct in failing to pay the compensation ordered is undoubtedly unreasonable at the very least, such conduct was not in relation to conduct of the matter before me.

[39] Finally, it is telling that at no stage in the wake of the Merits Decision did the Respondent make any settlement proposal despite the finding that the Applicant had been unfairly dismissed. Confronted with that finding and in circumstances where it elected not to appeal the Merits Decision, a reasonable course of action would have been for the Respondent to reconsider its position and propose a settlement. Such a course of action would have avoided further delay and potential costs to the Applicant. The Respondent’s failure to initiate settlement discussions or propose a settlement in the wake of the Merits Decision was, in the circumstances of this case, an unreasonable omission. My view on this point is reinforced by the fact that the Respondent filed no material in advance of the hearing conducted on 13 February 2020 to deal with the question of remedy.

[40] Before turning to my conclusions, I wish to briefly address the Respondent’s submission that it was the Commission’s actions rather than the Respondent’s that has led to delays and costs incurred by the Applicant. That submission is utterly devoid of merit as evident from an objective review of the Respondent’s conduct. Firstly, the Respondent failed to propose or constructively respond to any settlement proposal. It sought an adjournment of the 20 December 2019 hearing and when such request was declined, the Respondent failed to attend despite an order for its director Mr Shreeve to appear. Confronted with the Merits Decision it then sought a stay and further delay the remedy phase hearing through various and subsequently withdrawn interlocutory decision appeals. Finally, as at the date of the hearing of the costs application it has thus far failed to comply with the compensation Order.

[41] I am satisfied that the Respondent’s failure to propose or respond to settlement proposals following the filing of materials filed by it on 9 December 2019 in advance of the merits hearing constituted an unreasonable act or omission. Further, its non-attendance at the hearing of 20 December 2019 constituted an unreasonable act or omission. It follows from the foregoing that the conduct of the Respondent contributed to the unnecessary continuation of the matter beyond the conciliation conference conducted on 11 December 2019. I now turn to consider whether the unreasonable acts or omissions of the Respondent caused the Applicant to incur costs. In considering those costs I will deal with each of the costs itemised above at [23].

Item 010 – Fair Work commission – Phone Conciliation (x1) - $750

[42] This cost was incurred by the Applicant in the initial telephone conciliation conference conducted on 4 October 2019. According to the Tax Invoice Mr Mistica represented the Applicant. The conference occurred prior to the acts and omissions of the Respondent that I have found to be unreasonable. It is therefore not a cost that was incurred and attributable to the Respondent’s unreasonable acts or omissions.

Item 001 – Fair Work Commission – Hearing Appearance (x2) - $3060

[43] This item relates to the claimed appearance of representatives from HR Division, the organisation apparently representing the Applicant. The hearings to which the claimed appearances relate were that of the member assisted conciliation conducted by Deputy President Colman on 11 December 2019 and the determinative hearing before me on 20 December 2019.

[44] Turning firstly to the 20 December 2019, the Applicant was not represented in those proceedings. She appeared on her own behalf. She was accompanied by an individual who identified themselves as a ‘support person’, a Ms Kate Fincher, who when asked at the outset of the proceedings as to whether she was seeking to appear advised that she was not. In these circumstances it cannot be reasonably contended that the Applicant was represented or that a representative from HR Division ‘appeared’ at the hearing of the 20 December 2019. That lack of any formal ‘appearance’ or representation would not have put the Respondent on notice that the Applicant was incurring costs.

[45] As regards the member assisted conciliation conference on 11 December 2019 the Applicant was unable to recall or say whether she was represented in that conference or whether she was merely accompanied by a support person. Furthermore, there is no record of permission to appear having been sought pursuant to s. 596 of the Act in either of the two proceedings to which I have referred.

[46] Having regard to the above, why the Tax Invoice from HR Division refers to two ‘Hearing Appearances’ is curious. Certainly, there was no formal representation sought or provided in the hearings and as such any costs incurred could not be attributed to the Respondent’s unreasonable acts or omissions in my view.

Item 004 – Letter to employer (x1) - $190

[47] The Applicant was uncertain as to the timing or content of the letter referred to in the Tax Invoice. Nonetheless, it was confirmed by the Respondent that a settlement offer was sent by the Applicant’s representative following the telephone conciliation on 4 October 2019 thus confirming the particulars contained in the Tax Invoice. As previously detailed, the offer apparently contained in the letter well preceded the filing of material for the hearing on 20 December 2019. As such the cost incurred was not attributable to the acts or omissions of the Respondent which I have found unreasonable.

Item 002 – Preparation of particulars - $1100

[48] There is no particularity in the Tax Invoice as to what the ‘preparation of particulars’ referred to. The charge may relate to preparation and filing of the initial F2, it may relate to preparation of materials for the merit proceedings and/or the remedy proceedings. It is simply not possible to discern from the Tax Invoice what specific activities the charge relates to. The Applicant was also unable to clarify this point. The lack of particularity in the Tax Invoice has not assisted the Applicant’s cause in pursuing costs.

Item 005 – Appeal advice – various consultations - $1200

[49] This cost was not incurred in the conduct of the matter before me and as such is not capable of consideration in the present s. 400A application.

Item 011 – Complaint to Ombudsman – Failure to pay - $1,100

[50] Similar to Item 005 above, this cost was also not incurred in the conduct of the matter before me and as such is not capable of consideration in the present s. 400A application.

Conclusion

[51] In exercising my discretion to award costs pursuant to s. 400A I must be firstly satisfied of there having been unreasonable acts and omissions by the Respondent. Having found so, I must then also be satisfied that those acts and omissions caused the Applicant to incur costs. Given the state of the material filed by the Applicant and in particular the Tax Invoice prepared by her representative, and for the reasons detailed above, I am unable to reach the required level of satisfaction that the Applicant incurred costs as a consequence of the Respondent’s unreasonable acts or omissions.

[52] Having regard to the above I decline to exercise my discretion to award costs in favour of the Applicant and consequently must dismiss the application.

DEPUTY PRESIDENT

Appearances:

Z. Zelman on her own behalf

G. Raines for the Respondent

Hearing details:

2020
Melbourne
28 May

Printed by authority of the Commonwealth Government Printer

<PR719699>

 1   [2020] FWC 5

 2   [2020] FWC 647

 3   PR716998

 4   Section 402 of Act

 5   [2020] FWC 5 at [15]-[22]

 6   [2020] FWC 411

 7   Explanatory Memorandum to the Fair Work Amendment Bill 2012, page 7.

 8   Ibid at page 37.

 9   [2016] FWC 2659.

 10   [2014] FWCFB 1175 at [10]-[14].

 11   [2016] FWCFB 2478

 12 Ibid at [61].

 13   Ibid at [43], December 2019