These passages from a recently unfair dismissal case in the Fair Work Commission explain the legal principles involved when determining whether a costs order should be made against one party in favour of the other.
“Principles relevant to s.400A
[1] In Baxter Healthcare Pty Ltd v Portelli8 (Baxter Healthcare), the Full Bench of the Commission stated:
“[50] Item 4 of the Fair Work Amendment Bill 2012 inserted a new section 400A into the FW Act to enable the Fair Work Commission 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. The explanatory memorandum provides as follows:
- 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.
- 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.
- 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.”
[2] In Gugiatti v SolarisCare Foundation Ltd9 (Gugiatti), the Full Bench outlined the preconditions to the exercise of discretion in relation to an application made under s.400A, as follows:
“[43] 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.10“
[3] Notwithstanding the satisfaction of the preconditions set out in s.400A(1), the power to make an order for costs against a party is a discretionary power and it does not automatically follow that an order for costs will follow. In Baxter Healthcare, the Full Bench stated:
“[95] We note at the outset that the relevant sections provide that if the requisite jurisdictional facts are established (relevantly, ss. 400A(1) and (2), and s.611(2)) then the
Commission may make an order for costs. A costs order does not automatically follow upon a finding of the requisite jurisdictional fact. It is clear from the use of the word ‘may’ that the Commission retains a discretion as to whether or not to make an order for costs. In that regard these provisions may be contrasted with ss. 418(1) and 424(1), which provide that the Commission must make certain orders if certain jurisdictional facts are present.”
[4] Commissioner Bissett further considered s.400A in Emma Sidney v Employsure Pty Ltd (Sidney).11 In that decision she distilled a number of the principles that the Full Bench had recently considered in Roy Morgan Research v Baker12 as follows:
- “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.”13
[5] In respect of the principles of Calderbank,14 I note that in Post for NTI Limited,15 the Full Bench considered:
“[45] The jurisdiction of the Commission is not one where costs ordinarily follow the cause and there are no rules in the Commission dealing with formal offers such as offers of compromise. It is not a jurisdiction where the only remedy is monetary. An arrangement of the kind followed in the courts involving offers of compromise or Calderbank offers is therefore not necessarily appropriate where reinstatement is a possible remedy. An applicant may also pursue an application where there is no financial gain possible to seek to overturn a finding of misconduct on which their termination of employment was based and which affects their prospects of ongoing employment.”
Relevant Legislation s.611
[6] As s.400A(3) of the Act makes clear, s.400A does not limit the Commission’s power to order costs under s.611. Section 611, while stating that parties must bear their own costs, also provides for exceptions, relevantly outlining:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4 1).”
Principles relevant to s.611
[7] The provisions of the Explanatory Memorandum to the Fair Work Bill 2009 which relate to the clause that was to become s.611 stated:
“2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
- However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospect of success.”
(emphasis added)
[8] Thus subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before Fair Work Australia (FWA). However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. When FWA is satisfied that a prescribed circumstance exits, FWA is provided with a discretion to require a party to bear some or all of the costs of another party.
[9] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church),16 the Full Bench considered the approach to be taken in determining whether proceedings have been instituted vexatiously or without reasonable cause. With Rocla ultimately not submitting that Mr Stock made his unfair dismissal application vexatiously, it is only necessary to consider what the Full Bench outlined in relation to the expression ‘without reasonable cause’:
“A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”[6] (References omitted)
[10] In Church, the Full Bench outlined principles to be applied in deciding whether an application has been made without reasonable cause. These were summarised in Keep v Performance Automobiles Pty Ltd (Keep),[7] as follows:
“The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter[sic] Health Great Health and Wellbeing (Church). Church is authority for the following propositions:
(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.
(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.
(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.
(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.”17
[11] As to s.611(2)(b), the issue I have to determine is whether I am satisfied that in all the circumstances it should have been reasonably apparent to Mr Carew that his objections to the unfair dismissal application had no reasonable prospect of success. In Keep, the Full Bench also summarised the principles relevant to s.611(2)(b) of the Act, outlining:
“As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that “it should have been reasonably apparent” to that person that their application had ‘no reasonable prospect of success’. The expression “should have been reasonably apparent” in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.”
[12] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had “no reasonable prospects of success”. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;
“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.”[9] (references omitted)
[13] The Full Bench in Baker v Salva Resources Pty Ltd[10] summarised the principles to apply in deciding whether an application has been made without reasonable prospects of success as follows:
“The concepts within s.611(2)(b) ’should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
- ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
- a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”[11]
[14] More recently, when considering the meaning of s.611(2)(b), despite referencing it as s.611(1)(b), the Full Bench in Health Services Union – Victoria No.1 Branch v Sanli[12] stated:
“The observations of the High Court in Spencer v The Commonwealth as to the meaning of the expression ‘no reasonable prospect’ in s.31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), are apposite to the matter before us:
‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’
Section 31A of the Federal Court Act is a power to enter summary judgment and accordingly is not directly relevant to the matter before us. However, the High Court’s
observation (in Spencer) that full weight must be given to the expression as a whole and that descriptors such as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ do not provide a sufficient chart of the metes and bounds of the power, are also applicable to s.611(1)(b).”[13] (references omitted)
Submissions of the Applicant
[15] The Applicant filed submissions with the costs Application in the Commission on 26 April 2024. The Respondent did not file any submissions in the Commission.
[16] The Applicant submitted that the Respondent had acted unreasonably and caused the Applicant to incur legal costs. Specifically, the Applicant set out that the Respondent had:
- Failed to properly respond to requests for information from the Commission; and
- Failed to comply with the Direction of the Commission of 8 November 2023 to file the form F3; and
- Failed to comply with the Direction of the Commission to attend a Conference on 15 November 2023; and
- Misrepresented to the Commission that he had not been involved with the termination of the Applicant’s employment in circumstances where he was well aware that he was and had communicated the termination by voicemail to the Applicant; and
- Misrepresented to the Commission that he had ceased all involvement with the business on or about 24 June 2023, however during cross-examination informed that he had still been involved for a ‘transition’ period; and
- Caused the Commission to issue an order to Attend to Mr Carew of the Respondent and to file material in the Commission in light of the Respondent’s failure to comply; and
- Acted obstructively and dishonestly in continuing to deny that he had been the employer at the time of the termination, and caused further delays in providing ordered documentation; and
- Acted stubbornly obstinate and disrespectful during the processes of the Commission; and
- Did not respond to a Calderbank18 offer of settlement sent by the Applicant on 25 January 2024.
[17] The Calderbank offer from the Applicant relevantly stated that the matter would be discontinued by the Applicant should the Respondent pay to the Applicant a gross sum by way of compensation representing 8.5 weeks’ pay, which was calculated at $10,710.00. The offer noted that should the Applicant receive more favourable terms at the conclusion of the matter
by way of an order of the Commission, that they would rely upon the ‘Calderbank letter’. The Applicant gave the Respondent until close of business on Monday 29 January 2024 to respond however the Applicant submits that there was no response. I note the final order for compensation awarded to the Applicant was $18,629.00.
Submissions of the Respondent
[18] The Respondent did not file any submissions in response.
Consideration
[19] The costs application was filed within 14 days of the Commission determining the matter on 12 April 2024.19
[20] The grounds for seeking costs are set out at paragraph [59] of this decision.
[21] An itemised schedule of costs was included in the costs application seeking a total of
$6901.10. The schedule is as follows:
Item No.
Date
COSTS
Description of work done
Amount
19.12.2023
Item 101 – Instructions to act
$201.00
“
Item 601 – perusing recent email communications between parties & FWC & Form F2 and F3 filed (40 folios
@ $4 / folio)
$160.00
“ Item 601 – perusing 13 payslips during relevant period (13 folios @ $4 / folio)
$52.00
“ Item 801 – Short Letter to FWC & Respondent re instructions to act
$12.00
20.12.2023 Item 203 – Drawing Form F53 Notice of Applicant’s representation & lodging via email
$74.00
“ Item 804 – Special letter to FWC re possible application to replace Respondent with other entity
$50.00
21.12.2023 Item 1108 – Necessary pre-hearing conference with Applicant – ½ hour
$93.00
“
Item 1102 – Attendance at Fair Work Commission for mention (one hour @ $60 / ¼ hour); application re legal representation parties, oral evidence playing of Respondent’s voice message termination, contempt of Respondent re earlier Notice to Produce Documents; submissions made and Directions issued re hearing of jurisdictional objection on 23 Jan. 2024
04.01.2024
Item 601 – Perusing further amended directions from FWC, Order to attend & Order for Production (13 folios @
$4 / folio)
$52.00
11.01.2024
Item 601 – Perusing letter and material from Respondent’s solicitors incl Contract with purchaser of business, searches, newsletter (70 pages & 210 folios @$4 / folio)
12.01.2024 Item 601 – Email from FWC re issue of correct Respondent requesting submissions (< 3 folios)
$16.00
17.01.2024
Item 804(b) – Special letter to FWC re issue of correct Respondent following research of legal issue (9 folios @ Item 301 rate of $8 /folio)
$72.00
“ Item 601 – Perusing letter from Respondent’s solicitors in response to letter (8 folios @ $4/folio)
$32.00
19.01.2024
Item 802 – Ordinary letter to Respondent’s solicitors
providing copy of voicemail recording and requesting agreement to proposed transcript
$24.00
22.01.2024
Item 601 – Perusing letter from FWC re listing for jurisdictional objection on 23.01.2024 (4 folios @ $4 / folio)
$16.00
23.01.2024
Item 602 – Scanning Digital Court Book provided for hearing today (271 pages @ $6 / page = $1,626) Reduced:
$500.00
“ Item 1108 – Necessary pre-hearing conference with Applicant – 1 hour
$135.00
“
Item 1102 – Attendance at Fair Work Commission representing Applicant on jurisdictional hearing including oral evidence of witnesses and submissions (3 hours @ $60 / ¼ hour). Travel incurred but not claimed.
25.01.2024
Item 601 – Perusing letter from FWC re anticipated order that jurisdictional objection failed – reasons to follow &
Merits Directions attached (11 folios @$4 / folio)
$44.00
“
Calderbank letter sent to Respondent’s solicitors at 9.07am on 25.01.2024 (as there had been no notification they were no longer acting) – No fee – See attached letter “Without Prejudice Save as to Costs”.
05.02.2024 Item 601 – Perusing Decision of Deputy President Dobson OAM (32 folios @ $4 / folio)
$132.00
07.02.2024
Item 302 – Drawing Statement of James Nuttall (4 pages) and Applicant’s Outline of submissions in support of the Application (8 pages) (12 pages 36 folios @ $8 / folio)
$288.00
12.02.2024 Item 501 – Copy of 18 pages facebook entries re mitigation of loss by Applicant (18 pages @$2 / page)
$36.00
20.02.2024
Item 601 – Perusing Respondent’s Submissions and Statement of evidence and attached material e.g. training manual, complaints (total 50 pages / 150 folios @$4 / folio)
$600.00
“ Item 501 – Copy of 50 pages for client’s instructions (50 pages @ $2 / page)
$100.00
27.02.2024 Item 302 – Drawing Further Submissions in response to Respondent’s submissions (7 folios $8 / folio)
$56.00
28.02.2024 Item 601 – Perusing letter from FWC seeking submissions concerning legal representation (< 3 folios)
$16.00
28.02.2024 Item 302 – Drawing Submissions in relation to legal representation (3 folios @ $8 / folio)
$24.00
29.02.2024
Item 601 – Perusing advice from Respondent that he does not have legal representation and objecting to
Applicant being legally represented (< 3 folios)
$16.00
“ Item 302 – Drawing index to Applicant’s Authorities referred to in submissions (2 folios @ $8 / folio)
$16.00
“ Item 501 – Copy of 182 pages of Applicant’s Authorities (182 @ $2 / page)
$364.00
“ Item 601 – Perusing Notice of Listing of Determinative Hearing on Merits (< 3 folios)
$16.00
05.03.2024 Item 601 – Perusing Decision letter from FWC re legal representation (< 3 folios)
$16.00
08.03.2024 Item 601 – Perusing Digital Court Book updated – reduced fee:
$100.00
11.03.2024 Item 1108 – Necessary pre-hearing conference with Applicant – 1 hour
$135.00
“
Item 1102 – Attendance at Fair Work Commission representing Applicant on Determinative Hearing including oral evidence of witnesses and submissions (3
½ hours @ $60 / ¼ hour). Travel incurred but not claimed.
$840.00
12.04.2024 Item 601 – Perusing Order and Decision of Deputy President Dobson OAM (60 folios @ $4 / folio)
$240.00
TOTAL
$6,118.00
Costs and Disbursements
Amount claimed
Amount
taxed and allowed
Total costs (above) $6,118.00 + GST = $6,729.00 Plus GST
Total disbursements 05.08.2023: Filing fee $83.30
16.03.2024: CBD Parking fee to attend hearing $69.00 26.04.2024 ASIC Search fee – current & historical BM Supplies Pty Ltd $19.00
Further details including invoices will be provided on request
Total costs and disbursements
$6,901.10
[22] Having had regard to the Applicant’s submissions and the case history, I am satisfied that the Respondent:
(a) Failed to comply with directions of the Commission including:
- As directed on 8 November 2023 to file a Form F3; and
- As directed on 8 November 2023 to attend a conference on 15 November 2023;
(b) As a result of his failure to comply with directions, necessitated the making of an order on 16 November 2023 for the Respondent to attend the Commission (Notice to Attend) and to provide certain documents (Notice to Produce);
(c) Maintained a denial that he was the Respondent and caused the case to be delayed unnecessarily and moreso than would have been the case had he complied with the directions of the Commission.
[23] Indeed, even in respect of this Costs Application, the Respondent has failed to file any material in accordance with the directions. His failure to do so however, has only resulted in a higher risk of adverse findings being made against him and I am satisfied has not caused any further cost to be incurred by the Applicant.
[24] I note that the Applicant obtained legal representation and that a form F53 notifying the Commission and the Respondent of this was filed on 22 December 2023 at which point that arrangement commenced.
[25] I have considered the table of costs claimed in respect of s.400A, the relevant case law in Gugiatti and others as set out in this decision, the statutory basis, the explanatory memorandum, the grounds for the application brought by the Applicant and following a careful review of the case history. I note that the costs claim commence from 19 December 2023. It is my view that the legal costs set out in the Applicant’s claim were incurred after the Respondent’s conduct set out at paragraph [65]. Furthermore, I note that the fair Work Commission Rules 2024 require the filing of material such as the F3, which were also the subject of directions of 8 November 2023. Whilst there is no claim for legal costs that directly arise from the Respondent’s failure to comply with those Rules at the direction of the Commission, for completeness I add that it is apparent that s.400A is intended to cover costs incurred or caused by the other party to a matter once it is further progressed, that is, passed its initiation.20
[26] In respect of s.611, I can only consider the legal costs claimed which were incurred from 19 December 2023. I am not satisfied to the level required, that from 19 December 2023, the Respondent “responded to the application, vexatiously or without reasonable cause”21 or that “it should have been reasonably apparent … (that the Respondent) .. had no reasonable prospect of success.22 At that point, the Respondent had a number of arguments to put and whilst they were not ultimately successful nor were they particularly strong, they demonstrate that the defence of the case was not completely absent of any reasonable cause or prospect of success. Those defences include that the Respondent was not the employer, that the termination was a redundancy and that the Applicant’s performance had been poor.
[27] I accept that a Calderbank offer was made on 25 January 2024 to resolve the matter on the basis of a payment of $10,710. That offer was held open until close of business on 29 January 2024 and I accept that the Respondent chose not to engage in any resolution of the matter. Subsequently, when the Unfair Dismissal Application was upheld, the Respondent was ordered to pay the Applicant $18,629. Having balanced the facts accepted in this matter, the Full Bench consideration in Post v NTI Limited (Post),23 (noting that reinstatement was not sought by the Applicant in it’s Calderbank offer), Sidney at paragraph [47] and the Explanatory Memorandum as set out in paragraph [43] which specifically envisaged s.400A of the Act capturing a broad range of conduct including “a failure to agree to terms of settlement that could have led to the application being discontinued, “24 I consider the Respondent’s failure to accept the Calderbank offer was “an unreasonable act or omission in the connection with the conduct or continuation of the matter” within the meaning of s.400A(1). This is particularly
egregious when considered in light of the Respondent’s earlier conduct in the matter for which I have declined to make an order for costs per paragraph [69] of this decision.
[28] From the 30 January 2024 I note the following costs were incurred by the Applicant:
05.02.2024 Item 601 – Perusing Decision of Deputy President Dobson OAM (32 folios @ $4 / folio)
$132.00
07.02.2024
Item 302 – Drawing Statement of James Nuttall (4 pages)
and Applicant’s Outline of submissions in support of the Application (8 pages) (12 pages 36 folios @ $8 / folio)
$288.00
12.02.2024 Item 501 – Copy of 18 pages facebook entries re mitigation of loss by Applicant (18 pages @$2 / page)
$36.00
20.02.2024
Item 601 – Perusing Respondent’s Submissions and Statement of evidence and attached material e.g. training manual, complaints (total 50 pages / 150 folios @$4 / folio)
$600.00
“ Item 501 – Copy of 50 pages for client’s instructions (50 pages @ $2 / page)
$100.00
27.02.2024 Item 302 – Drawing Further Submissions in response to Respondent’s submissions (7 folios $8 / folio)
$56.00
28.02.2024 Item 601 – Perusing letter from FWC seeking submissions concerning legal representation (< 3 folios)
$16.00
28.02.2024 Item 302 – Drawing Submissions in relation to legal representation (3 folios @ $8 / folio)
$24.00
29.02.2024
Item 601 – Perusing advice from Respondent that he does not have legal representation and objecting to Applicant being legally represented (< 3 folios)
$16.00
“ Item 302 – Drawing index to Applicant’s Authorities referred to in submissions (2 folios @ $8 / folio)
$16.00
“ Item 501 – Copy of 182 pages of Applicant’s Authorities (182 @ $2 / page)
$364.00
“ Item 601 – Perusing Notice of Listing of Determinative Hearing on Merits (< 3 folios)
$16.00
05.03.2024 Item 601 – Perusing Decision letter from FWC re legal representation (< 3 folios)
$16.00
08.03.2024 Item 601 – Perusing Digital Court Book updated – reduced fee:
$100.00
11.03.2024 Item 1108 – Necessary pre-hearing conference with Applicant – 1 hour
$135.00
“
Item 1102 – Attendance at Fair Work Commission representing Applicant on Determinative Hearing including oral evidence of witnesses and submissions (3
½ hours @ $60 / ¼ hour). Travel incurred but not claimed.
$840.00
12.04.2024 Item 601 – Perusing Order and Decision of Deputy President Dobson OAM (60 folios @ $4 / folio)
$240.00
TOTAL
$2995.00
Conclusion
[29] For the reasons outlined above, I will exercise my discretion and order that The Trustee for BM Supplies Unit Trust T/A Brisbane Milk Supplies pay the costs of Mr Nuttall incurred in engaging Denise Hawthorne Legal, which I have assessed at $2,995.00. An order to this effect will be issued separately.”
Nuttall v The Trustee For Bm Supplies Unit Trust [2024] FWC 1841 delivered 12 July 2024 per Dobson DP