[2011] FWA 8040 |
|
DECISION |
Fair Work Act 2009
s.401 - Application for costs orders against lawyers and paid agents
Department of Education and Early Childhood Development
v
A Whole New Approach Pty Ltd
(U2011/10140)
COMMISSIONER GOOLEY |
MELBOURNE, 29 NOVEMBER 2011 |
Application for costs.
[1] This is an application made pursuant to section 401 of the Fair Work Act 2009 (FW Act) by the State of Victoria - Department of Education and Early Childhood Development (the Applicant) for costs against A Whole New Approach Pty Ltd (the Respondent).
[2] On 21 April 2011 Mr Kirk Skinner made an application for an unfair dismissal remedy pursuant to section 394 of the FW Act. That application advised that Mr Skinner was represented by the Respondent. Mr Skinner advised that the date of his dismissal was 18 January 2011. The application was not lodged within 14 days of the dismissal and no application to extend time was made.
[3] In its response to the application, the Respondent to the unfair dismissal application and the Applicant in this proceeding, raised three jurisdictional objections:
[4] On 16 May 2011 Ms Hayley Petrony of the Victorian Government Solicitor’s Office (VGSO) filed a Notice of Representative Commencing to Act.
[5] The application was conciliated on 26 May 2011 but did not settle. On 2 June 2011 directions were issued in relation to the jurisdictional objections and the parties were required to file material by 16 June 2011. On 16 June 2011 the Respondent filed a Notice of Discontinuance on behalf of Mr Skinner.
[6] On 30 June 2011 the Applicant filed an application for costs.
[7] At the hearing 19 August 2011 Mr Jack Tracey of counsel appeared for the Applicant and Mr Maurice Addison, a legal practitioner, appeared for the Respondent. Both lawyers were given permission to appear.
Legislative Framework
[8] Section 401(1) of the FW Act provides as follows:
“If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and
(ii) it should have been reasonably apparent that the person had no reasonable prospects of success; or
(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.”
[9] An application under section 401(1) must be made within 14 days of the discontinuance of the matter.
Matters not in dispute
[10] It is not disputed that the costs application was made within 14 days of the dismissal. Nor is it disputed that the Respondent is a paid agent.
[11] It was also not disputed that the Respondent was granted permission to appear. 1 The Applicant says the Respondent was given “de facto permission.” 2
The evidence
[12] Ms Romina Woll of the VGSO gave evidence for the Applicant. 3
[13] She gave evidence that the VGSO was instructed to represent the Respondent in the unfair dismissal matter in early May 2011. She gave evidence about the work performed by the VGSO in preparation for the conciliation conference and jurisdictional objection.
[14] She gave evidence that she spoke to Mr Gary Pinchen on 17 May 2011 who told her that Mr Skinner had been referred to the Respondent by Macpherson & Kelly Lawyers, that Mr Pinchen wished to have negotiations with the VGSO with a view to settling the matter and that Mr Skinner’s application may be dismissed on the grounds that it was out of time. 4
[15] On 20 May 2011 the Respondent to the unfair dismissal application filed the employer response form in which the objection to the application was detailed.
[16] It was also Ms Woll’s evidence that on 16 June 2011 she received a phone call from Mr Pinchen advising that he intended filing a Notice of Discontinuance because he did not consider that Fair Work Australia would grant Mr Skinner an extension of time. It was her evidence that if the VGSO had been notified of the discontinuance at a reasonable time, costs would not have been incurred. 5
[17] Ms Woll accepted that Mr Pinchen had tried to contact the VGSO for a number of days but one of the phone numbers on the F3 Employer’s Response form filed by the VGSO was incorrect. 6
[18] Mr Skinner gave evidence for the Respondent. 7 He gave evidence that he was employed as Musical Director by the Applicant since September 2002.8 His most recent contract was due to expire on 17 December 2010.
[19] It was his evidence that the basis of his employment, whether it was when he “was employed with no contract, under some sort of fixed term or when the position was tendered out were the same.” 9 He had always taken three weeks annual leave at Christmas.10 He gave evidence that he invoiced the Applicant for his work via a business name.11
[20] In December 2010 the position of Musical Director was advertised and Mr Skinner submitted a tender document. It was his evidence that on 17 December 2010 he was told that he was the successful applicant. 12
[21] He continued to work for the Applicant after 17 December 2010 including meeting with other staff. He returned to work on 14 January 2011 and performed work as usual including meeting with the Director. 13 On 18 January 2011 Mr Skinner was told to leave the building and clear his desk.14 On 26 January 2011 he was advised that the contract for 2011 was still under review.15
[22] Mr Skinner contacted MacPherson & Kelly Lawyers for advice who told him to wait until a final decision had been made.
[23] On 1 February 2011 Mr Skinner was advised that his contract was not being renewed. 16 Mr Skinner contacted his lawyers. They advised him that he had a breach of contract claim.
[24] Despite regular contact with his lawyers Mr Skinner was not advised until 1 April 2011 that he may have a “Fair Work Australia claim.” 17 There was no evidence that he was told about the time limit for making such a claim.
[25] At that time a number of legal options were discussed. On 6 April 2011 Mr Skinner’s lawyers told him that they may need to refer him to an advocate as he may have an unfair dismissal claim but Ms Deivina Peethamparam wanted to review matters. 18 On 8 April 2011 he was advised to contact Mr Pinchen but on the same day his lawyer told him that she would make contact with Mr Pinchen. On 14 April 2011 Mr Skinner asked his lawyer for Mr Pinchen’s telephone number. He rang Mr Pinchen on 18 April 2011 and on 19 April 2011 he spoke to Mr Pinchen and a meeting was organised for 21 April 2011. On 21 April 2011 Mr Skinner was told for the first time that there was a time limit for making an unfair dismissal claim.19
[26] In cross examination Mr Skinner accepted that he did not speak to Mr Pinchen until 21 April 2011 and that was by telephone. He also forwarded Mr Pinchen a letter which said in part: “Everyone seems to say that I have a case, I just need to know now how to go about it all.” 20
[27] Mr Skinner did not provide Mr Pinchen with any other documents and nor does it appear that Mr Pinchen asked him for any other documents.
[28] It does not appear that, apart from the issue of the time limit, there was any discussion of the merits of Mr Skinner’s claim at that time. 21 Mr Skinner did not meet Mr Pinchen until 26 May 2011, an hour before the conciliation conference.22 There were some telephone conversations between those dates but Mr Skinner did not give evidence that there was any discussion of the merits of his claim.
[29] After the conciliation conference, Mr Skinner was provided with a pro forma witness statement by the Respondent which he completed and sent back. 23 Around this time there was some discussion between Mr Skinner and Mr Pinchen about the time limit.24
[30] Mr Pinchen gave evidence on behalf of the Respondent. 25
[31] He gave evidence that he was called by Mr Skinner on 21 April 2011 after he had finished work for the Easter break. He told Mr Skinner about the 14 day time limit and that if he wished to go ahead with the claim it would have to be lodged that day. 26 It was his evidence that Mr Skinner told him that he wanted the claim lodged.27
[32] He asked Mr Skinner for documentation and then contacted MacPherson & Kelly Lawyers and he was advised by Ms Peethamparam, Mr Skinner’s lawyer, that Mr Skinner may have been a contractor. Mr Pinchen said that Mr Skinner had not told him that. 28
[33] Mr Pinchen received a copy of the employer response form but did not consider that documentation or what was put at conciliation meant that Mr Skinner did not have a case. The employer response form set out their response in detail and attached copies of Mr Skinner’s contract and invoices as well as the tender document submitted by Mr Skinner. It was Mr Pinchen’s evidence that “the Government solicitors did not provide any further documentation that would allow us to reconsider the merits of the claim and drop it.” 29
[34] On 17 May 2011 Mr Pinchen made contact with Ms Woll in an attempt to resolve the matter. He advised that he considered Mr Skinner was an ongoing employee and if that was the case, then the matter would cost the department a lot of money. He also told Ms Woll he considered Mr Skinner to be an employee not a contractor. He expressed the view to Ms Woll that the only matter he was concerned about was the extension of time.
[35] On 2 June 2011 Mr Pinchen received the notice of listing for the jurisdictional hearing setting out the directions which required the filing of material by 16 June 2011. Mr Pinchen submitted that in this time the Respondent had a significant workload. 30
[36] Mr Pinchen had formed the view that Mr Skinner was employed on an ongoing basis and the contract was a sham and Mr Skinner was an employee. He was however concerned that the application was significantly out of time. Mr Pinchen sought copies of all Mr Skinner’s correspondence with his solicitors. Once he received that documentation he arranged for Mr Skinner to attend his office. 31
[37] Mr Pinchen advised Mr Skinner about his concerns about the application being out of time and said he needed to get advice on the matter but that the application may need to be discontinued. Mr Skinner left this matter in Mr Pinchen’s hands. 32
[38] After reading Mr Skinner’s statement Mr Pinchen formed the view that an application for an extension of time would not succeed. This occurred around the 11 or 12 June 2011. On 15 June 2011, Mr Pinchin attempted to make contact with Ms Petrony who was the solicitor listed on the employer response form. He rang again on 16 June and spoke to Ms Woll. He told her he had tried to call Ms Petrony but to no avail. It was at this point it was found that the phone number on the employer response form was incorrect. He advised Ms Woll that the application would be discontinued. 33
[39] In cross examination Mr Pinchen said that Easter in 2011 was a long break and when the application was lodged he was not aware of the issues about Mr Skinner being a contractor. All he knew was what Mr Skinner told him that he had been dismissed by email, he had been there for eight or nine years and he held a senior position. 34
[40] Mr Pinchen in cross examination said he saw some documentation in the week after Easter. After reviewing the documentation Mr Pinchen sought additional material and spoke to Mr Skinner about the contractual relationship with the department. He also told Mr Skinner that MacPherson & Kelly Lawyers may have “let [him] down here by pursuing the contract issue.” Mr Pinchen told Mr Skinner that there was “a very strong argument that [he was] an employee, not a contractor.” 35
[41] In cross examination Mr Pinchen said he did not request information from Mr Skinner about his communications with his lawyers until after the conciliation conference. 36 Mr Pinchen was aware that this information would be needed to support a claim of representative error or to establish what Mr Skinner had done to dispute the dismissal.37
Submissions of the Applicant
[42] The Applicant relied on sections 401(1)(a) and (b) of the FW Act namely the Respondent encouraged Mr Skinner to start or continue the unfair dismissal claim and that it should have been reasonably apparent to the Respondent that Mr Skinner had no reasonable prospects of success and the Respondent caused costs to be incurred by filing the Notice of Discontinuance on the day that the parties were due to file their material.
[43] The Applicant submitted that the Respondent was given defacto permission to appear. 38 It was acknowledged by the Applicant that no actual permission had been given to the Respondent to appear.39 It was submitted that the purpose of section 401 was to defer speculative claims and it applied at all stages of the process, including: making applications, submissions and appearing at FWA conciliation.40
[44] The Applicant accepted that in the circumstances faced by Mr Pinchen “filing quickly was an advisable thing to do.” 41 Mr Skinner, it was accepted, relied upon Mr Pinchen to give him advice and it was submitted that Mr Pinchen encouraged Mr Skinner to lodge the application and to continue with it when it should, given Mr Pinchen’s experience, been reasonably apparent that the extension of time would not be granted.42
[45] It was the Applicant’s submission that Mr Skinner’s last communication with his lawyers was on 17 March 2011 and the unfair dismissal application was not lodged until 21 April 2011. It was submitted that by 17 March 2011 the application was already out of time. 43 It was submitted that knowing it was out of time Mr Pinchen still encouraged Mr Skinner to lodge the application.44
[46] It was further submitted that Mr Pinchen encouraged Mr Skinner to continue with the application until 16 June 2011 when it should have been reasonably apparent to Mr Pinchen that the claim could not succeed as there were no exceptional circumstances warranting an extension of time and because of the strength of the Applicant’s jurisdictional objection. 45
[47] It was submitted that Mr Pinchen as early as 17 May 2011 knew that the claim may fail because it was out of time and this is supported by the notice of discontinuance being filed on 16 June 2011. 46
[48] It was submitted by the Applicant that the extension of time application could not have succeeded. 47
[49] It was also submitted that it should have been reasonably apparent that Mr Skinner’s claim could not succeed because Mr Skinner was not a national system employee. It was further submitted that even if it were established that Mr Skinner was a national system employee it was reasonably apparent that he was not dismissed. It was submitted that the claim had no reasonable prospects of success because of the strength of the jurisdictional objection. 48
[50] The Applicant relied upon the information provided in the employer response form. 49 It was also submitted that this issue was canvassed during the conciliation conference.50 It was submitted that from as early as 20 May 2011 when the employer response form was served, or 26 May 2011 when the conciliation conference occurred or prior to 16 June 2011, it should have been reasonably apparent to the Respondent that the claim had no reasonable prospects of success.51
[51] It was further submitted that the late discontinuance of the proceeding caused costs to be incurred. It was submitted that nothing changed in relation to Mr Skinner’s circumstances between 21 April 2011 and 16 June 2011 which increased the likelihood of success of the application for an extension of time. 52 Had the Respondent notified the Applicant earlier of Mr Skinner’s intention to discontinue the matter, costs could have been avoided.
[52] In response to a question from me, Mr Tracey accepted that the issue of whether Mr Skinner was a contractor was not one where there was no reasonable prospect of success. 53 He did however maintain the claim that Mr Skinner was an employee was a very weak claim.54
[53] He took a different view to the issue of whether Mr Skinner was on a fixed term contract. He submitted that the documents showed that Mr Skinner was on an annual contract. 55
[54] In relation to when the Respondent should have formed a view that there was no reasonable prospect of success Mr Tracey submitted that his should have occurred at the latest after the conciliation conference.
[55] The Applicant seeks $8872 for its costs.
Submissions of the Respondent
[56] The Respondent conceded that it was a paid agent and had been given permission to appear. 56
[57] It was submitted that on the evidence it cannot be found that the Respondent encouraged Mr Skinner to start or continue his application. 57
[58] It was submitted that on the basis of the information provided to Mr Pinchen on 21 April 2011 it was reasonable for Mr Pinchen to form the view that Mr Skinner had reasonable prospects of gaining an extension of time. 58
[59] It was further submitted that discontinuing an application cannot be an unreasonable act. It was submitted that having received the directions from Fair Work Australia, Mr Pinchen took steps to obtain detailed instructions from his client, undertook research and sought advice. 59
[60] Mr Pinchen provided advice to Mr Skinner about the prospects of being granted an extension of time and received instructions from Mr Skinner to conduct further research and get further advice. After this, Mr Pinchen reached the view that Mr Skinner’s application for an extension of time would not be successful and discontinued the matter. 60
[61] It was submitted that Mr Pinchen’s actions were those of a reasonable representative and therefore there was no unreasonable act or omission of the Respondent which caused the Applicant to incur costs.
[62] It was further submitted that it was the Applicant’s jurisdictional objection which caused the Applicant to incur costs, not the act of the Respondent in discontinuing the proceeding. 61
[63] It was further submitted that the Tribunal should not exercise its discretion to award costs as this would discourage parties from discontinuing. 62
Findings
[64] Despite the concession of the Respondent that it had been granted permission by Fair Work Australia there is no evidence before the Tribunal that the Respondent was in fact given permission to appear.
[65] Section 596 of the FW Act provides for Fair Work Australia to grant permission to appear as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”
[66] Fair Work Australia is defined in section 575 of the FW Act as follows:
“(1) Fair Work Australia is established by this section.
(2) Fair Work Australia consists of:
(a) the President; and
(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and
(c) such number of Commissioners as, from time to time, hold office under this Act; and
(d) a minimum of 3, and no more than 6, Minimum Wage Panel Members.”
[67] At no stage had the Respondent been given permission to appear by Fair Work Australia in accordance with section 596 of the FW Act. No concession by the Respondent can change that fact. I do not accept the submissions of the Applicant that the Respondent had been given defacto permission to appear. It was submitted that the Registry, by accepting the application and submissions lodged by the Respondent, had given de facto permission. 63 It was also submitted that a conciliator is an agent of Fair Work Australia.64 The conciliators who conduct conciliation conferences are employees of Fair Work Australia. As such a conciliator is not able to give permission for a party to be represented and neither is the Registry.65
[68] Section 15 AA provides as follows:
“15AA Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
[69] I accept the Applicant’s submissions that my interpretation of section 401 of the FW Act is seemingly contrary to the purpose of section 401 of the FW Act and that an agent who encouraged an applicant to lodge and continue a claim that had no reasonable prospects of success would not be caught by section 401 until such time as they were granted permission to appear by a member of Fair Work Australia. Further I accept that an interpretation which gives effect to the purpose of the legislation is preferable. However, to adopt the approach of the Applicant in this matter would mean that there would be no requirement for permission to be granted for a lawyer or paid agent to file or make submissions as this permission would be granted by the mere filing of an application. It is clear that the FW Act did not intend this outcome.
[70] Rule 17A of the Fair Work Rules made on 2 September 2011 grants permission for lawyers or paid agents to lodge applications and make submissions. It provides as follows:
“17A Representation other than at conference or hearing
(17A.1) For section 596 of the Act, and subject to a direction by FWA to the contrary, a party to a proceeding before FWA may be represented by a lawyer or paid agent for the purpose of preparing and/or lodging any written application (including an originating application) or written submission, corresponding with FWA or lodging any document with FWA.”
(17A.2) To remove doubt, nothing in this rule is to be taken as permitting a lawyer or paid agent to represent a party in a conference or hearing before FWA.”
[71] Had this rule applied at the time the unfair dismissal application was made then there would have been no jurisdictional barrier to awarding costs.
[72] I have concluded that prior to determining under section 401 of the FW Act if costs should be ordered against a lawyer or a paid agent, it must be proved that permission to appear in accordance with section 596 has been granted. In this matter no such permission was granted and therefore Fair Work Australia has no jurisdiction to order costs against the Respondent. 66
[73] In any event, even if this were not the case I would not order the Respondent pay the Applicant’s costs.
[74] There is no evidence that the Respondent encouraged Mr Skinner to make the application. It was conceded by the Applicant that Mr Pinchen was entitled to file the application when instructed to by Mr Skinner. 67 It was the Thursday afternoon before Easter, Mr Skinner had told Mr Pinchen when he had been terminated and Mr Pinchen was aware that an extension of time was necessary. Mr Pinchen was also aware that even if there were exceptional circumstances warranting an extension of time, any delay in filing the application, once Mr Skinner was alerted to the time limit, would harm his application. There was nothing in what Mr Skinner told Mr Pinchen on that evening that would have alerted Mr Pinchen to the other jurisdictional issues.
[75] There was also no evidence that the Respondent encouraged Mr Skinner to make the application. It was not put to Mr Pinchen or Mr Skinner that the Respondent encouraged Mr Skinner to make the application.
[76] Did Mr Pinchen encourage Mr Skinner to continue with the application? The evidence established that Mr Pinchen did not undertake a forensic examination of Mr Skinner’s instructions until after the conciliation conference. The evidence also established that Mr Skinner relied upon Mr Pinchen for advice to the extent that he gave Mr Pinchen open instructions to discontinue if Mr Pinchen decided that it was necessary. 68 Further, from 2 June 2011, Mr Pinchen knew that the Applicant in this matter was required to prepare its material in support of its jurisdictional objection. However there was no evidence that the Respondent encouraged Mr Skinner to continue with his application. Again this was not put to Mr Pinchen or Mr Skinner.
[77] Further it is not possible to conclude that it should have been reasonably apparent to Mr Pinchen that Mr Skinner had no reasonable prospects of success.
[78] I do not accept that the decision to discontinue the proceeding is evidence that it was reasonably apparent to Mr Pinchen that Mr Skinner had no reasonable prospects of success.
[79] In A Baker v Salva Resources Pty Ltd 69 that Full Bench provided a useful summary of the approach to be taken to section 611(2)(b) which is in similar terms to section 401(1)(a)(ii):
“[10] The concepts within s611(2)(b) “should be reasonably apparent” and “had no reasonable prospects of success” have been well traversed:
[80] The test is objective.
[81] In this matter it is not possible on the evidence before the Tribunal to conclude that it would have been reasonably apparent that Mr Skinner had no reasonable prospects of succeeding in his claim that he was not a contractor. So much was conceded by the Applicant. 70
[82] However it was submitted that Mr Skinner had no prospect of proving that his employment was terminated at the initiative of the employer. The evidence of Mr Skinner, which was not challenged, was that his position was advertised on 7 December 2010 and he was told on 17 December 2010 that he had been appointed. His existing contract was due to expire on 17 December 2010. It was his uncontradicted evidence that he continued to attend work after that date and returned to work on 14 January 2011 after the holiday break and continued to work until 18 January 2011 when he was told to leave the premises.
[83] There was no evidence called to contradict Mr Skinner’s version of events. In the circumstances, it is not possible to conclude that it should have been reasonable apparent to the Respondent that Mr Skinner had no reasonable prospects of establishing that his employment had been terminated by the Applicant.
[84] The Applicant submitted that it should have been reasonably apparent that Mr Skinner would not be granted an extension of time. Mr Skinner was terminated on 18 January 2011 and did not lodge his application until 21 April 2011. It was his uncontested evidence that he immediately contacted solicitors but on the advice of his lawyers, he took no action until he received formal notification of the termination on 1 February 2011. His lawyers made contact with the Applicant’s lawyers but there was no evidence that it was alleged by Mr Skinner’s lawyers that he had been unfairly dismissed. It was Mr Skinner’s evidence that his lawyers did not raise the issue of his rights under the FW Act until 6 April 2011 and that he was not told about the time limit for lodging applications until 21 April 2011. It was Mr Skinner’s evidence that he relied upon his lawyer’s advice at all times. Mr Pinchen considered that Mr Skinner may have been able to rely upon representative error 71 to support his application for an extension of time.
[85] Fair Work Australia and its predecessors have taken the approach that, depending on the circumstances, representative error may be a sufficient reason to extend time. 72 These cases have often involved a failure of the representative to act on the client’s instructions. That was not the case here. Here it would have to be argued that Mr Skinner relied upon the advice of his lawyer who was in error when they did not advise him of his possible remedies under the FW Act and the time limit for making an application. In McConnell v A&PM Fornataro,73 Vice President Lawyer said that a “lay person should not be regarded as acting in a blameworthy fashion when they act on the advice of an expert that they retain for the purpose of giving expert advice.” I accept that a failure by a legal representative or agent to advise a client of his or her rights under the FW Act and the time limits for making an application may constitute representative error.
[86] On the evidence before me, namely that Mr Skinner was not advised of a possible unfair dismissal claim and the time limit for making such a claim by his lawyers that he relied upon to give him advice, I cannot conclude that it should have been reasonably apparent to the Respondent that Mr Skinner had no reasonable prospect of being granted an extension of time.
[87] The Applicant submitted the failure of the Respondent to file a Notice of Discontinuance until 16 June 2011, which was the date on which the submissions of the Applicant were due, was an unreasonable act or omission in connection with the conduct or continuation of the matter.
[88] While it is preferable that a paid agent give detailed consideration to all the legal issues in dispute between the parties in sufficient time to enable them to provide advice to their client, there is no evidence that the Respondent unreasonably delayed taking instructions from Mr Skinner. It was uncontested that some of the delay was caused because Mr Skinner had to get documents from his lawyers. 74 Further it was uncontested that Mr Skinner gave Mr Pinchen instructions to carefully assess his case including seeking advice on his claim. That Mr Pinchen only conducted a detailed forensic examination of the case to be put by Mr Skinner after the conciliation conference is not surprising. Mr Pinchen undertook this examination in the three weeks after the conciliation and reached the conclusion that the claim should be discontinued. I do not accept the submissions of the Applicant that nothing had changed in this time. What had changed was that Mr Pinchen had an opportunity to assess the evidence. It was this detailed assessment that led to the discontinuance. I do not consider this to be an unreasonable act or omission.
Conclusion
[89] For the reasons outlined above, as the Respondent had not been granted permission to appear, Fair Work Australia is not able to award costs against the Respondent. Even if this were not the case, I would not for the reasons outlined order, that the Respondent pay the Applicant’s costs in this matter.
COMMISSIONER
Appearances:
J Tracey for the Applicant
M Addison for the Respondent
Hearing details:
2011.
Melbourne:
August 19.
1 Exhibit R3 at [8]
2 Exhibit A3 at [13]
3 Exhibit A1
4 Exhibit A2 at [7]
5 Exhibit A1 at [10]
6 Transcript PN 128-131
7 Exhibit R1
8 Ibid at [1]
9 Ibid at [6]
10 Ibid
11 Ibid at [8]
12 Ibid at [2]
13 Ibid at [19]
14 Ibid at [25]
15 Ibid at [28]
16 Ibid at [31]
17 Ibid at [43]
18 Ibid at [44]
19 Ibid at [49]
20 Exhibit R2 at A
21 Transcript PN 259-260
22 Ibid PN 264
23 Ibid PN 294-299
24 Ibid PN 300
25 Exhibit R2
26 Ibid at [3]
27 Transcript PN 346
28 Exhibit R2 at [4]
29 Ibid at [6]
30 Ibid at [8]
31 Ibid at [10]
32 Ibid at [11]
33 Ibid at [15]
34 Transcript PN 368
35 Ibid PN 381
36 Ibid PN 451
37 Ibid PN 454
38 Grigonis v Adelaide Coffee Company Pty Ltd [2011] FWA 1586 at [11]-[12]
39 Exhibit A3 at [13]
40 Ibid at [14]
41 Transcript PN 505
42 Ibid PN 506
43 Exhibit R3 at [19]
44 Ibid at [20]
45 Ibid at [23]
46 Ibid at [25]
47 Ibid at [26]
48 Ibid at [28]-[29]
49 Ibid at [31]
50 Ibid at [32]
51 Ibid at [33]
52 Ibid at [41]
53 Transcript PN 517-520
54 Ibid PN 524
55 Ibid PN 528
56 Exhibit R3 at [8]
57 Ibid at [10]
58 Ibid at [13]
59 Ibid at [19]
60 Ibid at [20]-[21]
61 Ibid at [29]
62 Ibid at [31]
63 Transcript PN 478
64 Ibid PN 480
65 I note no such body exists under the FW Act the expression is used to denote the administrative division of Fair Work Australia which receives unfair dismissal applications and documents.
66 Dean v Sybecca Pty Ltd [2011] FWA 1010
67 Transcript PN 506
68 Ibid PN 425
70 Transcript PN 572
71 Transcript PN 399
72 Clarke v Ringwood Private Hospital 74 IR 413 at 418
73 [2011] FWAFB 466 at [66]
74 Transcript PN 449
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