WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 01148

DELIVERED : TUESDAY, 13 December 2011

FILE NO. : B 91 OF 2011

Applicant

AND

Turner & Townsend Pty Limited

Respondent

CatchWords : Industrial law (WA) - Contractual benefits claim - Application for costs - Relevant principles applied - Application dismissed.

Legislation : Industrial Relations Act 1979 s 27(1)(c)

Result : Application dismissed

Representation:

Applicant : Ms C Bahemia of counsel

Respondent : Mr D Todd

Case(s) referred to in reasons:

Denise Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26

Reasons for Decision

1          On 27 September 2011 Mr Edwards discontinued his claim for contractual benefits.  His claim was for benefits said to arise under terms and conditions of his contract with the United Kingdom operations of Turner and Townsend, prior to Mr Edward’s employment by the Australian business.  The claim was listed for hearing before the Commission on 29 September 2011.  As a consequence of the discontinuance, Turner and Townsend Pty Ltd, the respondent to these proceedings, has made an application for costs.  The costs claimed are in relation to airfares and accommodation for Mr Todd, Turner and Townsend’s Managing Director, and Mr Rokesky, the Human Resources Director, to travel to Perth from Brisbane for the hearing.  The total costs claimed are $3,431.98.  Mr Todd contended that when his Brisbane office was notified on Wednesday 28 September 2011 of Mr Edwards' discontinuance of these proceedings he and Mr Rokesky were in transit to Perth to appear before the Commission the next day. 

2          At the direction of the Commission during the course of the hearing, Turner and Townsend filed copies of invoices in relation to the travel and accommodation costs claimed.  Mr Todd submitted that whilst, as a result of the discontinuance of Mr Edwards’ claim, he and Mr Rokesky were able to usefully spend time in Perth on other matters in relation to the company’s business, nonetheless, given the vexatious nature of Mr Edwards’ claim, a costs order should be made.

3          In an affidavit filed for the purposes of these proceedings, Mr Edwards testified that when he commenced his claim, based as it was on terms and conditions of contract with the United Kingdom operations of Turner and Townsend, he considered that there was merit in his application.  Mr Edwards said that he spoke to an officer at Turner and Townsend regarding his final salary payments and was encouraged in his view. 

4          Mr Edwards testified that it was only a few days before the date listed for the hearing of the matter that he accepted that one potential interpretation of his former employment contract with Turner and Townsend in the United Kingdom may not support his claim.  It was on the strength of this recognition that he decided to discontinue the proceedings by filing a notice of discontinuance.  Mr Edwards said he understood from the Registry of the Commission that once his discontinuance had been filed, Turner and Townsend would be duly notified.  A copy of the notice of discontinuance was then posted to Turner and Townsend and a declaration of service to this effect was filed on 29 September 2011.  The declaration of service refers to the service by post of the notice of discontinuance on 28 September 2011, the day after it was filed.

5          Counsel for Mr Edwards submitted that there were live issues for determination in these proceedings, including whether a claim under Mr Edwards’ United Kingdom conditions of employment fell within the Commission’s jurisdiction.  Further, there were live issues in relation to the interpretation of those terms and conditions of employment, along with matters of fact which had to be determined.  On this basis, it was contended by counsel that the circumstances of the discontinuance did not warrant an order for costs.

6          The capacity for the Commission to order costs to a party to proceedings under the Act is very limited.  By s 27(1)(c) the Commission may make an order as to costs other than for the costs of a legal practitioner or agent.  It is however only in extreme cases that a costs order will be made: Denise Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26.  What is an extreme case will depend entirely on the circumstances of the matter at hand.

7          Whilst it is regrettable that Mr Todd and his colleague were in transit to Perth when they were notified that Mr Edwards had discontinued his claim, I am not persuaded the circumstances before me are extreme.  The nature of the claim filed by Mr Edwards raises issues which were required to be determined by the Commission based upon the evidence which may have been led before it.  Questions of jurisdiction and contractual interpretation were anticipated.  These matters were arguable even though Turner and Townsend regarded the claim as vexatious.  On my assessment, the claim advanced by Mr Edwards was not completely untenable such that it had no prospects of success at all.  It is important to note that the Commission has not had the benefit of any evidence before it in relation to Mr Edwards’ claim and can therefore only make an assessment on the basis of the papers filed in the application and the defence to the claim.

8         Furthermore, but perhaps incidentally, it does seem that on Mr Todd’s submissions, both he and Mr Rokesky were able to usefully engage their time on company business whilst in Perth and in that sense at least, whilst there may no doubt have been inconvenience, their time in this State was not entirely wasted.

9         For these brief reasons, whilst I have some sympathy for the position of Turner and Townsend, having regard to all of the circumstances of this case, the application for costs must be dismissed.