WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00357

DELIVERED : friday, 14 june 2013

FILE NO. : B 204 OF 2012

Applicant

AND

Lift Equipt Pty Ltd (ACN 125 331 848)

Respondent

Catchwords : Contractual benefits claim - Application for costs - Applicant's claim for benefits dismissed - Liberty granted to respondent to apply for costs - Costs awarded in part - Details of wages to be provided to Commission

Legislation : Industrial Relations Act 1979 s 26, s 27(1)(c), s 29(1)(b)(ii)

Result : Reasons for decision issued

Representation:

Applicant : In person

Respondent : Ms M Johnston

Case(s) referred to in reasons:

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

Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 75 WAIG 9

Reasons for Decision

1         On 11 March 2013 an order issued dismissing the applicant’s claim for benefits he maintained were denied to him under his contract of employment with the respondent.  As the respondent foreshadowed it wanted to claim costs at the end of the hearing the respondent was given liberty to make this application.

2         The respondent argues that the applicant’s claim lacked any merit.  The applicant’s contract did not provide for the wages and overtime he claimed were due to him and the applicant did not seek reimbursement for any of the benefits he claimed were due to him until after he was terminated.  The respondent maintains that numerous hours of its employees’ time have been wasted dealing with the applicant’s application, his Full Bench appeal and the hearing resulting in monetary losses to the respondent.

3         The applicant argues that no costs should be awarded against him as it is unfair for the respondent to be reimbursed the costs of preparing and defending this application.  Additionally, the wages being claimed by the respondent to deal with this application are based on incorrect amounts.  Claiming costs related to the Full Bench application are inappropriate as this was a different matter.

4         The respondent is claiming reimbursement of the following costs:

Ms Melanie Johnston – one week’s wages $1,884.62;

Mr Brett Johnston – one week’s wages $3,469.20;

Mr Brian Johnston – one week’s wages $3,469.20;

Mr Stefan Putyra - $47.50 per hour sitting in court - three hours in total; and

Incidental costs amounting to $250.

5         The respondent included details of the activities undertaken by the respondent to deal with the applicant’s claim for denied contractual benefits and the time spent by Ms Johnston, Mr Brian Johnston and Mr Brett Johnston to do so between 22 October 2012 and the date of the hearing on 1 February 2013.  Time spent by the respondent’s employees to deal with application FBA 7/2012 between 7 January 2013 and 22 January 2013, which related to an application by the applicant to have this application heard in Perth and was dismissed, was also included in the respondent’s claim for reimbursement of wage costs.  No breakdown was provided as to how the hours being claimed were calculated and no receipts were provided for the incidental costs being claimed nor were details of this expenditure provided.

6         Mr Brett Johnston gave evidence on behalf of the respondent at the hearing to deal with the applicant’s claim for denied contractual benefits and the respondent’s case was conducted by Mr Brian Johnston and Ms Johnston.  Mr Putyra was listed to be a witness for the respondent and attended the hearing but the respondent did not call him to give evidence.

Consideration

7         Section 27(1)(c) of the Industrial Relations Act 1979 (the Act) gives the Commission the power to order any party to a matter to pay to any other party its costs and expenses, including witness expenses, but no costs are allowed for the services of any legal practitioner or agent.

8         The test to be applied in awarding costs under s 27(1)(c) of the Act is set out in Denise Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26 where the Full Bench held that ‘[t]he general policy in industrial jurisdictions is that costs ought not to be awarded, except in extreme cases’ (27).  It is also the case that costs may be awarded against a party where an application has no merit and is ‘manifestly groundless’ or ‘so manifestly faulty that it does not admit of argument’ (see Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 75 WAIG 9, 11).

9         I am satisfied that the circumstances of this matter are such as to warrant an order for costs.  I find that the applicant’s claims for wages and overtime owing to him were groundless, lacked merit and had no prospect of success.  Furthermore, the items for which the applicant was seeking reimbursement were not agreed to be paid by the respondent, nor was payment for these items contemplated in the applicant’s contract of employment with the respondent.  These claims therefore had no prospect of success.  After taking into account s 26 considerations, and my conclusions that the applicant’s claims were baseless and had no prospect of success, I will order that the applicant pay the respondent some of the costs being sought.  In my opinion it is appropriate that costs incurred by the respondent for the hours Ms Johnston, Mr Brian Johnston and Mr Brett Johnston spent in the Commission during the hearing should be reimbursed by the applicant.  In my view the payment of these costs is fair and reasonable as they were all required to attend the hearing to give evidence and/or were involved in conducting the respondent’s defence of the application.  The hearing commenced at 11.30 am and concluded at approximately 2.00 pm.  I will therefore base the costs to be awarded to the respondent on the hourly rate of pay for each employee on the pay slips of each employee on or about the date of the hearing for a period of two and a half hours.  To this end, within seven days the respondent is to provide to the Commission by way of statutory declaration copies of pay slips of the wages paid to Ms Johnston, Mr Brian Johnston and Mr Brett Johnston at the relevant time, which also confirm their hourly rate of pay, so that the amount due to the respondent can be calculated.

10      The respondent claimed reimbursement of time employees spent sending emails, preparing responses and general preparation to meet the applicant’s claims however no details were provided as to who carried out these activities and the time spent on each activity.  I therefore reject these claims.  It is also inappropriate in my view that the respondent be reimbursed the cost associated with defending the Full Bench application as that was a separate matter to the applicant’s application for denied contractual benefits and was a matter that should have been raised with the Full Bench.  Mr Putyra did not give evidence so the claim for the reimbursement of the cost of his attendance at the hearing is also rejected.  As no details or receipts were provided with respect to the incidental costs being claimed by the respondent these claims are also rejected.