(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the
Commission, and
(b) in the case of an appeal to the Commission, the
costs of or incidental to the proceedings giving
rise to the appeal, as well as the costs of or
incidental to the appeal.
13 The relevant parts of the section may be dealt with shortly. First, the Commission when not in Court Session has only limited powers to award costs. That is, costs may be awarded only in certain specified circumstances. Second, subject to a relevant circumstance being demonstrated, the question of costs is in the discretion of the Commission. Although I consider that the circumstances set out respectively in paragraphs (a), (b) and (c) of subsection 181(2) potentially apply to the present appeal proceedings, the only paragraph which seems actually applicable to the circumstances of this matter is that set out in s 181(2)(b). The issue then becomes a question of whether it is open to the Commission to form the opinion that the appellant instituted the present proceedings without reasonable cause.
14 There have been a number of recent Full Bench decisions which have considered the question of costs in unfair dismissal proceedings, or in relation to appeals in such proceedings: see Bankstown City Council v Paris (1999) 93 IR 209; Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 and Pendergast v Tony Blain Pty Ltd [2000] NSWIRComm 107. Those decisions essentially relate to applications made under s 181(2)(c) except that, in the last mentioned decision, there is also reference to an application made under the other limbs of s 181(2). However, the consideration by the Full Bench in that case related specifically to the facts of that case.
15 It is therefore appropriate to set out what I consider to be the approach that should be adopted in relation to an application for costs to which s 181(2)(b) is relevant. Although the question the Commission needs to consider is whether the party instituting proceedings did so without reasonable cause, it is appropriate in forming that opinion where circumstances subsequent to that commencement are relevant to the issue, to have regard to such circumstances. In doing so, it is also appropriate in the context of an appeal (as noted in Bankstown City Council v Paris at 220) to have regard to the following observations of Wilcox CJ in Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 260 - 261:
I appreciate that a party who has been unsuccessful at trial may wish to have time to consider whether or not to prosecute an appeal. In order to avoid losing its right of appeal, the party may file a notice of appeal with the intention of discontinuing the appeal if, on reflection, it decides against proceeding. It is usual, in such a case, for the party who files the notice of appeal to inform the opposing party that no final decision has yet been made as to the prosecution of the appeal and to suggest that the latter may defer incurring any substantial costs in connection with the appeal, pending a further intimation.
16 It is also relevant to have regard to the current statutory scheme as to appeals which was described in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 in the following way:
The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State.
17 The matters which then require consideration are the decision appealed from and the notice of appeal. The decision appealed from is a detailed decision delivered on 30 November 2000. For present purposes it is sufficient to note that the decision related to a dismissal which was portrayed as one brought about by a redundancy situation where the employer had, for financial reasons, decided to "abolish" the position held by the respondent. In determining the matter, the commissioner held that the evidence before him did not make out the financial difficulties which the appellant relied on and, in any event, the respondent was denied an opportunity to put forward any proposal to the employer for consideration of a course of action other than her dismissal. The employee was, on the commissioner's finding, "denied a fair consideration of alternatives to dismissal". A discretionary consideration, raised by the employer as a basis to decline any grant of compensation to the respondent, which related to an alleged misrepresentation of her qualifications, was treated by the commissioner as irrelevant in the light of his findings as to the way in which the employee was originally employed. The commissioner awarded the sum of $9,000 pursuant to s 89(5) which represented an amount equal to approximately ten weeks wages.
18 Turning to the notice of appeal, the grounds as to leave to appeal included a jurisdictional issue as to the power of the Commission where an employee had been terminated on account of redundancy; an issue as to assessment of compensation and the obligation to provide reasons for the assessment of same; and an issue as to reliance on information discovered by an employer following the dismissal of an employee. The grounds of appeal included the assertion that the commissioner erred in law in requiring the appellant to establish the need for the respondent to be made redundant and error in holding that the respondent had an obligation to discuss with the respondent alternatives to dismissal. There are other grounds of appeal but the most significant have, I think, been shortly stated.
19 Having carefully read the commissioner's decision and also the grounds set out in the notice of appeal both as to leave to appeal and as to the substantive appeal, and having regard to the requirements of the Act as to leave to appeal and the provisions which govern the hearing of an appeal, I consider that the appeal was bound to fail. On that basis, I consider that it is open to find that the appeal was instituted without reasonable cause in terms of s 181(2)(b). However, as earlier indicated, I consider that it is appropriate to consider all the relevant circumstances of the appeal. That is, not only the circumstances as at the time of the initiation of appeal but, at least in the circumstances of this case, the circumstances up to and including the non-appearance of the appellant in the further proceedings before the Commission on 1 February 2001. When all of those considerations are taken into account the situation is one which clearly meets the relevant criteria. Not only was the appeal, when lodged, bound to fail but, in addition, notwithstanding what has been found to be the reasonable and co-operative approach adopted by the respondent and her solicitor, the agreement reached by the respondent in that spirit of co-operation was not honoured either in the letter, or in spirit, by the appellant. Notwithstanding this situation, the appellant obtained a stay of the commissioner's order for a period of some significance. The appellant thereby gained through the lodging of an appeal a stay which, with the benefit of hindsight, should not have been properly allowed to it. This, in my view, only occurred because of the co-operative attitude adopted by the respondent, and may have been agreed because of the perceived need to have the proceedings go forward. I do not consider that the circumstances, on analysis, come within the situation discussed in Imogen Pty Ltd v Sangwin . In all the circumstances, the application meets the statutory criterion in s 181(2)(b) and there is no reason why the resulting discretion should not be exercised in favour of the respondent. The respondent has suffered delay and incurred legal costs unnecessarily. An order for costs should therefore be made in her favour.
Orders
20 Accordingly, the Commission makes the following orders:
1. The appellant shall pay the respondent's costs of and in connection with the application for extension of time and application for leave to appeal and appeal filed by the appellant on 22 December 2000 in a sum as agreed, or in default of agreement, as assessed.
2. These proceedings are now concluded.