DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gina Resul
v
Fantastic Lights
(U2014/3897)

Application for relief from unfair dismissal - costs application

[1] On 12 November 2014, I dismissed Ms Resul’s application for an unfair dismissal remedy. 1

[2] That decision and my earlier decision 2 set out the history of this matter. On 21 November 2014, Fantastic Lights made an application for costs. Directions were issued to Ms Resul to file material in opposition to that application. Ms Resul did not comply with those directions. On 6 January 2014, I advised the parties that unless the parties wanted a hearing I would decide the application on the papers.

[3] Given Ms Resul did not file any material there are no disputed facts.

[4] Fantastic Lights submitted that Ms Resul had caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter. 3

[5] The unreasonable acts relied upon by Fantastic Lights included:

(1) her failure to prosecute her claim in particular her failure to provide any evidence to the Commission to support her claim.

(2) the failure to accept a reasonable offer of settlement. After the conciliation conference on 20 March 2014 Fantastic Lights advised that it was willing to accept Ms Resul’s proposal to settle the matter but Ms Resul did not accept this.

(3) From 4 June 2014, Ms Resul was on notice of the submissions and evidence that Fantastic Lights would rely upon and should have been aware at that time that she had no reasonable prospects of success and was unreasonable in continuing to pursue her application.

[6] Alternatively, Fantastic Lights submitted that Ms Resul’s claim was made without reasonable cause and she had no reasonable prospects of success. 4

[7] Fantastic Lights submitted that the failure of Ms Resul to put any evidence before the Commission is evidence that the application had no reasonable prospects of success. It was submitted that Ms Resul would have been aware at the time she made her application that she resigned her employment and as such her claim was bound to fail. Even if she was not aware at that time once Fantastic Lights put on its material on 4 June 2014 Ms Resul should have been aware that her claim was bound to fail.

[8] Fantastic Lights seeks cost on an indemnity basis.

Findings

Was Ms Resul’s conduct in connection with the proceeding unreasonable and did that conduct cause Fantastic Lights to incur costs?

[9] I consider that Ms Resul caused costs to be incurred by Fantastic Lights because of her unreasonable act or omission in connection with the proceeding.

[10] Ms Resul failed to prosecute her claim and failed to discontinue her application. Ms Resul has failed to provide a satisfactory explanation for this conduct. I had regard to Ms Resul’s illness in my decision of 8 October 2014 and extended time for her to file material. By this time she had the advantage of considering the material filed by Fantastic Lights but she neither discontinued her application, nor filed material nor attended the hearing. In fact Ms Resul made no further contact with the Commission. By not filing a Notice of Discontinuance Ms Resul caused Fantastic Lights to incur costs unnecessarily.

[11] I reject the submissions of Fantastic Lights that Ms Resul’s failure to accept the offer of settlement was an unreasonable act or omission. The settlement proposal sent to Ms Resul was marked “without prejudice”. It was not an open offer to settle the matter. While I am not bound by the rules of evidence I note that s.131 of the Evidence Act 1995 (Cth) precludes the adducing of evidence about settlement negotiations. There are good public policy reasons for not taking into account without prejudice negotiations. Parties may be less willing to participate in settlement discussions if their failure to agree can be subsequently used against them in costs applications. Fantastic Lights were legally represented in this proceeding and should have been aware that to be able to rely on Ms Resul’s failure to agree to settle the claim it needed to make an open offer to settle the claim or a without prejudice save as to costs offer.

Did Ms Resul make her claim vexatiously?

[12] I am unable to conclude that Ms Resul’s claim was made vexatiously. There is insufficient evidence before me to support a finding that the application was made for the predominate purpose to harass or embarrass Fantastic Lights. 5

Was Ms Resul’s application made without reasonable cause?

[13] I accepted the unchallenged evidence at the hearing that Ms Resul resignedher employment. Ms Resul’s failure to call any evidence in rebuttal or challenge the evidence given at the hearing does not mean that she made her application without reasonable cause. At least in her application she clearly disputed that she had resigned.

Did Ms Resul’s claim have no reasonable prospects of success?

[14] It should have been clear to Ms Resul that upon receipt of my 8 October decision that her failure to prosecute her claim meant that it had no reasonable prospects of success. By this time she was on notice that the matter would proceed and if she did not file material the only evidence that would be before the Commission would be Fantastic Lights’ evidence and as such her claim was bound to fail.

Conclusion

[15] The power to award costs against a party is discretionary.

[16] I have had regard to the fact that Ms Resul was unrepresented. I have also had regard to her advice that she has been ill. Ms Resul effectively had from March 2014 to 7 November 2014 to prepare her material. It cannot be said that she was not provided with every opportunity to prosecute her case. From 15 September 2014, Ms Resul stopped communicating with the Commission and put Fantastic Light to further costs.

[17] Ms Resul could have ended this matter earlier by filing a Notice of Discontinuance but she chose not to.

[18] I have also had regard to the fact that Fantastic Lights is a small business and has been put to the unnecessary costs of defending an unfair dismissal claim.

[19] I am not prepared to order Ms Resul pay all of Fantastic Lights costs. I will order that she pay costs incurred by Fantastic Lights from 17 June 2014 because from that date she was on notice that Fantastic Lights had applied to have her application dismissed because of her non compliance. Despite being given additional time she did not comply.

[20] I have reviewed the costs claimed by Fantastic Lights for this period and note the hourly rate charged. I will not put Fantastic Lights to the further expense of preparing costs on scale as I consider the cost claimed would not be more than the costs calculated on scale.

[21] In her application Ms Resul named Fantastic Lights as her employer. Fantastic Lights is the trading name used by Ms Dot Crisford who is a sole trader. The Employer’s Response Form advised that the legal name of Ms Resul’s employer was Ms Crisford. In those circumstances I will order that Ms Resul pay Ms Dot Crisford costs of $2175.88 within 21 days of the date of this order.

DEPUTY PRESIDENT

 1   [2014] FWC 8018

 2   [2014] FWC 6216

 3   S.400A of the Fair Work Act 2009

 4   S.611 of the Fair Work Act 2009

 5   Nilsen v Loyal Orange Trust (1997) 76 IR 180 AT 181

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