[2011] FWA 2575

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Fair Work Act 2009
s.394—Unfair dismissal

Paul Andrews
Cooperative Research Centre for Advanced Composite Structures Ltd T/A Advanced Composite Structures - Australia



Application for costs.

[1] This is a decision arising out of two costs applications made by the Co-Operative Research Centre for Advanced Composite Structures Ltd t/as Advanced Composite Structures - Australia (the Respondent) as a result of a decision issued on 25 February 2011 by Fair Work Australia (the Tribunal) in relation to the original application under s.394 of the Fair Work Act 2009 (the Act) brought by Mr Paul Andrews (the Applicant) against the Respondent.

[2] The Respondent seeks costs against the Applicant and also against the solicitor representing the Applicant, Mr Christopher Tucker of Lachlan Partners Legal.

[3] Mr Donaghey represented the Respondent at the original hearing and again at the costs application hearing. Mr Andrews represented himself and Mr J McKenna represented Mr Tucker.

[4] The Respondent makes applications against the Applicant under section 611(2)(a) and (b) of the Act and against Mr Tucker under section 401(a)(ii) of the Act.

[5] Section 611 of the Act states as follows:

[6] Section 401(1) of the Act states as follows:

[7] The Respondent’s arguments, in terms of costs, go to the following and are stated as follows in their Submission of the Applicant on Cost:

[8] The Respondent seeks from the Applicant or from his solicitor an order for all of its costs. The Respondent seeks an indemnity costs order.

[9] The Respondent states that if the Tribunal is against the Respondent’s application for indemnity costs, then the Respondent seeks a reasonable amount of costs to be awarded to the Respondent such as two thirds of the total costs incurred and identified in Schedule A attached to the Submissions.

[10] The Respondent states:

[11] The Respondent further states:

[12] On the basis of the Applicant’s, or alternatively Mr Tucker’s, pursuit of a hopeless case in these circumstances, the Respondent seeks its indemnity or other costs of the proceeding, including a jurisdictional motion.

[13] The Applicant read a statement to the Tribunal defending his position in relation to the pursuit of his application.

[14] Mr McKenna, on behalf of Mr Tucker, stated that the application against Mr Tucker, brought under s611 of the Act is misguided. In Mr Tucker’s Outline of Submissions on Costs it is stated as follows:

[15] The Tribunal has considered the written and verbal submissions of the parties very carefully, given that the power to award costs is a discretionary power and one that should be exercised very carefully.

[16] In considering the costs against the Applicant, the Tribunal would reject such application. The Tribunal is satisfied that, on the material before it, the Applicant does not meet any of the criteria in s611(2)(a) or (b) in order for the costs to be issued against him. Although the Applicant was not successful in his application, it does not follow that just because a person is unsuccessful that they had instituted proceedings either vexatiously or without reasonable cause or there was no reasonable prospect of success.

[17] From the Applicant’s point of view, he was convinced, based on past practice of the Respondent and also on the evidence that was to be provided by Mr Heathcote in the original application, that there was some prospect of success in that the Applicant’s contract of employment would go beyond 30 June 2010.

[18] It was only when Mr Heathcote, who was to give certain evidence and then changed his evidence during the proceedings, that it became clear that the Applicant’s contract was to expire on 30 June 2010.

[19] Understanding that the Applicant had had approximately 18 years’ service, and that service had been based on extensions of contracts, the Applicant (although incorrectly) thought that his employment would go beyond 30 June 2010, once funding by the federal government had been provided. The Applicant took some comfort to support his view from the evidence that was to be provided by Mr Heathcote.

[20] Quite often it is the very nature of the proceedings before the Tribunal and other forms of litigation before Courts where parties have a different view as to (a) a conversation (b) what the written words mean and (c) what was behind those written words. The mere fact that somebody instigates proceedings either in the Tribunal or another jurisdiction based on their view of the above does not mean that the claim has been instigated vexatiously or without reasonable cause.

[21] Therefore, as already stated above, the application for costs against the Applicant is rejected.

[22] In relation to the application for costs against Mr Tucker, the Tribunal understands that the application by the Applicant commenced before he sought legal advice from Mr Tucker.

[23] Without breaching the legal professional privilege, one would assume that Mr Tucker received advice from the Applicant based on the Applicant’s 18 years’ experience with the Respondent and the continuation of various contracts of employment. The Applicant’s expectations of what he may have expected based on past practice and the assurances that the Applicant would have received from the evidence that was to be provided by Mr Heathcote would have been also conveyed to Mr Tucker.

[24] The Tribunal can find nothing in the material provided that says that Mr Tucker did nothing more than represent the interests of the Applicant in a professional manner and relied upon the material provided by the Applicant. As stated in dealing with the costs application against the Applicant, it only became apparent that the Applicant’s employment was to cease on 30 June 2010 during the evidence given by Mr Heathcote. By then the matter, at the initial hearing, was nearly completed, except for final submissions.

[25] The Tribunal is satisfied that none of the criteria set out in s401(1) can be satisfied.

[26] It is the Tribunal’s view that both the Applicant was entitled to pursue his claim and have it tested and Mr Tucker was entitled, and in fact did, represent the interests of the Applicant based on proper professional conduct and legal professional privilege.

[27] Therefore, the application for costs against Mr Tucker is also rejected.

[28] A further point was raised by Mr Donaghey in relation to the wording at s401(1) where it states:

[29] The argument by Mr McKenna, on behalf of Mr Tucker, was that Mr Tucker was not the recipient of permission to appear under s.596 and on a proper reading of that provision, which the Tribunal is obliged to apply, there is no jurisdictional basis for this application to be made against Mr Tucker under s.401

[30] Mr Tucker, the solicitor representing Mr Andrews, was the instructing solicitor on the day of the initial proceedings. Ms Nelson, of counsel, was representing Mr Andrews and it is argued by Mr McKenna that it was Ms Nelson who was given permission under s.596 to appear before the Tribunal.

[31] It is an interesting point raised by Mr Donaghey, on behalf of the Respondent, and addressed by Mr McKenna. It is one that the Tribunal does not need to turn its mind to at this point given that it has rejected the costs application. However, it may be a point that may need to be addressed at some future point where a costs application, as in this case, is brought against an instructing solicitor but because the instructing solicitor is not the one who seeks permission but counsel is obliged to seek permission, whether in fact a costs application could be brought and even if it could, whether it would be successful given that the instructing solicitor would not have been the one seeking permission to appear.


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