Fair Work Act 2009

s.365 - General protections

Application for contraventions involving dismissal - application for costs - ss. 375B, 376, 611.

• [1] This decision concerns an application for an order for costs made by Ms Samantha Rumbel (Applicant) against Modern Motors Dungog Pty Limited (Respondent).

• [2] On 15 May 2023, the Applicant made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging the Respondent terminated her employment on 5 May 2023 in contravention of Part 3-1 of the FW Act (Application).

• [3] On 31 May 2023, the Respondent filed its response to the Application in which it objected to the Application on the basis that it was made more than 21 days after the dismissal took effect (Jurisdictional Objection). In support of its contention that the Application was out of time, the response stated:

The employee was interviewed on 6 April 2023 and was presented with the allegations of fraud and stealing from the employer. The employee was offered the chance to respond to the allegations and was given a reasonable time to return with those answers.

By 17 April 2023 no response had been received from the employee or at all. On 17 April 2023 the employee was notified in writing of the specific allegations which had been put to her on 6 April. The employment of Rumbel was terminated on 6 April 2023 by letter dated 17 April 2023. Her application was not filed until 15 May 2023. In the event that the commission disagrees the respondent says that her employment was terminated on 17 April 2023. In those circumstances the Application of the employee is out of time.

• [4] The matter was subsequently allocated to my Chambers to determine whether the Application was made out of time and if so, whether the Commission will allow a further period for the Application to be made.

• [5] On 13 July 2023, I issued a decision[1] in which I determined the Application was made within 21 days and that an extension of time was not required.[2]

• [6] In arriving at that conclusion, I stated:

[24] I have no hesitation in finding the date that the Applicant's dismissal took effect was 5 May 2023.

[25] It is abundantly clear on the Respondent's correspondence that no decision to dismiss the Applicant had been made prior to 5 May 2023 and that the Applicant received notification of her dismissal by email on 5 May 2023. Furthermore, under cross examination Rumbel agreed that the Respondent had not informed the Applicant of her dismissal prior to 5 May 2023.

[26] It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

[29] The Respondent's position seems to be based on an (erroneous) belief that it can back-date a dismissal to the date at which it considered it had grounds to dismiss the Applicant. That position is contrary to the authorities and is simply unacceptable. [3]

• [7] The matter was then allocated to a staff conciliator for the purposes of the Commission conducting a conference pursuant to s.368 of the FW Act.

• [8] On 20 July 2023, the Applicant filed the application for costs which is the subject of this decision (Costs Application). By the Costs Application, the Applicant seeks an order that the Respondent pay her costs pursuant to s.375B and s.611 of the FW Act. The Applicant also seeks an order that the Respondent's lawyers pay her costs pursuant to s.376 of the FW Act.

• [9] On 30 August 2023, the matter was re-allocated to my Chambers to determine the Costs Application.

• [10] In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Costs Application. The Applicant filed an Amended Costs Application, an outline of submissions, and a statement of Samantha Rumbel dated 8 September 2023. The Respondent filed an outline of submissions.
• [11] The parties requested that I determine the Costs Application on the papers. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

• [12] The Applicant filed a witness statement in support of the Costs Application. The statement refers to correspondence sent on her behalf to the Respondent's lawyers on 1 June 2023, the day after the Respondent filed its response to the Application.

• [13] That correspondence relevantly states:[4]

The purpose of this correspondence is to provide you the opportunity to withdraw jurisdictional objections to our client's application.

In respect of your objection that the application was filed out of time, we refer you to the decision of Mohammed Ayub v NSW Trains [2016] FWCFB 5500 which considers that a dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. We also refer you to the decision of Burns v Aboriginal Legal Service of Western Australia (Inc) which determined that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

Rumbel of Modern Motors only provided our client with the letter of termination on 5 May 2023. This letter states:

"As a result, your employment is terminated, and that termination is back dated to 6 April 2023."

This is the first time our client became aware that her employment was terminated. Specifically, we refer you to your client's show cause letter date 17 April 2023 which says:

"You will be given an opportunity to show cause as to why your employment should not be terminated."

Any suggestion that our client was aware that her employment was terminated from 17 April 2023 is frivolous and cannot succeed.

We strongly encourage your client to abandon their jurisdictional objections to our client's general protections claim. In the case that your client continues to prosecute these objections and intends to proceed to a separate hearing in the Fair Work Commission, our client will defend the objections and will claim her costs for doing so pursuant to section 611 of the Fair Work Act 2009 (Cth). We also reserve our client's rights under section 376(2) of the Fair Work Act 2009 (Cth).

We look forward to your confirmation that your client abandons their jurisdictional objections within seven (7) days of this correspondence.

• [14] The Applicant stated that the purpose of the correspondence was to save the legal costs of preparing for and attending a hearing where "the result was clear and that my Application had been made in time".[5]

• [15] In relation to s.611, the Applicant submitted that the question of whether an application (or response) has been made vexatiously looks to the motive of the person making the application or response. In the context of this matter, the Applicant submitted that in making the Jurisdictional Objection, the Respondent could only have sought to delay the proceedings and cause the Applicant to incur costs.

• [16] The Applicant submitted that on the Respondent's own evidence, the Jurisdictional Objection was subject to fail and therefore, the Jurisdictional Objection must have been raised for a purpose other than defending the Application.

• [17] The Applicant submitted that for the same reasons the Jurisdictional Objection was without reasonable cause and that it had no reasonable prospect of success.

• [18] In relation to s.375B, the Applicant submitted that further, or in the alternative, the failure by the Respondent to withdraw its Jurisdictional Objection was an unreasonable act or omission which caused the Applicant to incur costs.

• [19] In support of this submission, the Applicant stated that the Respondent had the benefit of its correspondence dated, 1 June 2023, which identified the relevant authorities that demonstrated the Jurisdictional Objection had no prospects of success. The Applicant submitted that the Respondent had ample opportunity to withdraw its Jurisdictional Objection to avoid both parties incurring unnecessary legal costs.

• [20] In relation to s.376, the Applicant submitted that it should have been clear to the Respondent's lawyers that the Jurisdictional Objection was vexatious and had no reasonable prospects of success. The Applicant submitted that the failure of the Respondent's lawyers to withdraw the Jurisdictional Objection was unreasonable in circumstances where they were aware that the objection had no prospect of success.

• [21] The Respondent submitted that the Costs Application was made out of time. The Respondent submitted that s.377 of the FW Act provides that an application for an order for costs must be made within 14 days after the Commission finishes dealing with the matter. The Respondent submitted that the Commission was not finished dealing with the matter until 4 August 2023, when it concluded the conference conducted pursuant to s.368 of the FW Act.

• [22] The Respondent submitted that the Costs Application had to be filed within 14 days from 4 August 2023 and as the Applicant failed to do so, the Costs Application should be dismissed.

• [23] The Respondent submitted that the date of dismissal was a genuine question to be determined by the Commission and that at the time of making the response and continuing to the hearing of the Jurisdictional Objection, there were three possible dates of dismissal.

• [24] The Respondent submitted that it was entitled to challenge the "jurisdiction of the Application" and the fact that an argument failed is not a sufficient basis to enliven the Commission's jurisdiction to make an order for costs.

• [25] The Respondent submitted that there was no basis to make an order that the Respondent's lawyers pay the Applicant's costs as the matter turned on contested facts and no costs had been unreasonably incurred.

• [26] Section 375B of the FW Act provides as follows:

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

(a) an application for the FWC to deal with the dispute has been made under section 365; and

(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

(3) This section does not limit the FWC's power to order costs under section 611.

• [27] Section 376 of the FW Act provides as follows:

376 Costs orders against lawyers and paid agents

(a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and

(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

(c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.

(4) This section does not limit the FWC's power to order costs under section 611.

• [28] Section 611 of the FW Act provides as follows:

(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).

• [29] Section 377 of the FW Act provides as follows:

An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.

Was the Costs Application made within 14 days after the Commission finished dealing with the dispute?

• [30] Section 377 of the FW Act provides that an application for an order for costs, in relation to a matter arising under Part 3-1 of the FW Act, must be made within 14 days after the Commission has finished dealing with the dispute.
• [31] There is no specific or general power within the FW Act for the Commission to allow a further period for such an application to be made.[6]

• [32] The Costs Application was made on 20 July 2023. At that stage, the Commission had not finished dealing with the dispute. Therefore, it cannot be said that the Costs Application was not made within 14 days after the Commission finished dealing with the dispute.

• [33] However, the Costs Application was made prematurely. In Mihajlovic v Lifeline Macarthur[7] (Mihajlovic), a Full Bench of the Commission considered whether an application for an unfair dismissal made prematurely was invalid. The Full Bench held:

[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic's premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).[8]

• [34] Although Mihajlovic was a matter concerning an application for an unfair dismissal remedy, I am of the view that the conclusion reached by the Full Bench is apposite to the matter before me in that:

• Section 377 is a procedural provision which identifies when an application may be made;

• It does not go to the jurisdiction of the Commission to make an order for costs;

• An application for an order for costs which is made prematurely may be characterised as one which was not made in accordance with s.377 of the FW Act; and

• Where an application for an order for costs in relation to an application under s.365 or s.372 is made prematurely, the Commission is conferred with a discretionary power to dismiss the application under s.587 or waive any irregularity under s.586.

• [35] The Costs Application was made 7 days after the Commission determined the Jurisdictional Objection. While the Commission was not finished dealing with the dispute, the premature filing has not caused any prejudice to the Respondent.

• [36] I do not consider it would be fair and just[9] to dismiss the Costs Application simply because it was made within 14 days of the determination of the Jurisdictional Objection, but prior to the Commission finishing dealing with the matter.

• [37] Accordingly, and to the extent it is necessary, I have decided to exercise my discretion to waive any irregularity in the form or manner in which the Costs Application was made pursuant to s.586 of the FW Act.

• [38] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[10] (Church), a Full Bench of the Commission stated:

[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:

2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.

2354. 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 prospects of success.

2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.

2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.

• [39] The exceptions to the general rule are set out in ss.611(2)(a) and (b).

• [40] In relation to s.611(2)(a), the relevant principles were stated comprehensively in Church.[11] In Keep v Performance Automobiles Pty Ltd[12] (Keep), a Full Bench of the Commission summarised the principles as follows:

[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter 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'.[13]

• [41] In relation to s.611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd[14] (Baker), as follows:

[10] 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.

• [42] The point in time at which an evaluation must be made under s.611(2) is when the application is made (Form F8), or when the respondent responds (Form F8A).[15]

• [43] In relation to applications for costs against respondents, in Wood v Amigoss, a Full Bench of the Commission held that the tests under s.611(2) are relevantly the same as the tests applied to applicants:

(a) on the facts apparent to the respondent at the time the application was made, whether it responded to the application vexatiously or without reasonable cause (s.611(2)(a)); and

• (b) on the facts apparent to the respondent at the time the application was made, whether there was no substantial prospect of successfully defending the application (s.611(2)(b)).[16]

• [44] It is also important note that the determination of an application under s.611 includes the exercise of discretionary power. In Hansen v Calvary Health Care Adelaide Limited [17], a Full Bench of the Commission stated:

...the statutory scheme sets out the relatively circumscribed circumstances in which an order for costs might be found by the Commission to be appropriate in a particular case. It includes the exercise of discretionary power where the Commission is satisfied that one, or more of the circumstances set out in s 611(2), has been established. If such circumstances are established, the Commission, in the broad exercise of its discretion, may make an order that a person/s bear some, or all of the costs of another person, in relation to the application, including on an indemnity basis, or decline to make any order at all.[18]

• [45] In its evidence in support of the Jurisdictional Objection, the Respondent filed a witness statement of Mr Murray Rumbel, a director of the Respondent.[19] Mr Rumbel stated that on 5 May 2023, he instructed his lawyers to "issue a notice of termination which backdated the date of termination to 6 April 2023."[20]

• [46] Furthermore, and as noted in the Decision, Mr Rumbel agreed under cross examination that the Respondent had not informed the Applicant of her dismissal prior to 5 May 2023.[21]

• [47] That evidence is consistent with the Respondent's correspondence to the Applicant on 6 April 2023, which informed her that she was stood down; and 17 April 2023, which invited her to show cause as to why her employment should not be terminated.[22]

• [48] As I stated in the Decision, "it is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed".[23] And further:

The Respondent's position seems to be based on an (erroneous) belief that it can back-date a dismissal to the date at which it considered it had grounds to dismiss the Applicant. That position is contrary to the authorities and is simply unacceptable.[24]

• [49] I agree with the Respondent that the date of dismissal is an essential fact to be determined in the context of whether a dismissal related application is made within the prescribed period. I also agree that a respondent is entitled to challenge the jurisdiction of the Commission in a matter. However, that entitlement is not unfettered and any challenge as to the Commission's jurisdiction that is mounted vexatiously, without reasonable cause, instigated when it should have been reasonably apparent that it had no reasonable prospect of success, or involves an unreasonable act or omission exposes a respondent to an order for costs.

• [50] Having regard to the evidence before the Commission and the principles relevant to s.611(2)(a), I am satisfied that based upon the facts known to the Respondent at the time of raising the Jurisdictional Objection, the response was simply untenable. Accordingly, I am satisfied that the Respondent responded to the Application (insofar as it relates to the Jurisdictional Objection) without reasonable cause.

• [51] I am also satisfied in applying an objective test, that it should have been reasonably apparent to the Respondent that its response to the Application (insofar as it relates to the Jurisdictional Objection) had no reasonable prospect of success (s.611(2)(b)).

• [52] Section 375B provides the Commission with the power to make an order for costs against a party to a dispute if the Commission is satisfied that party caused those costs to be incurred because of an unreasonable act or omission of that party in connection with the conduct or continuation of the dispute.

• [53] In Keep, the Full Bench set out the background to s.375B as follows:

[11] Section 375B was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth). The new provision came into effect on 1 January 2014 and applies to dismissals which took effect from that date.

[12] The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states as follows:

"New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A).

57. This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application.

58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

59. The FWC's power to award costs under subsection 375B(1) 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.

60. 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.

61. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause."

[13] It is apparent from the Supplementary Explanatory Memorandum that the legislature intended that the power to order costs provided by s.375B only be exercised where there is clear evidence of unreasonable conduct. Such an approach is entirely consistent with the jurisprudence relating to the other costs provisions in the FW Act (such as s.611).

[14] As stated in s.375B(3), the power to make an order for costs pursuant to s.375B(1) does not limit the FWC's power to order costs pursuant to s.611.

• [54] In my view the Respondent's failure to withdraw the Jurisdictional Objection following receipt of the Applicant's correspondence on 1 June 2023 was an unreasonable act or omission in connection with the conduct or continuation of the dispute which caused the Applicant to incur costs for the following reasons.

• [55] First, the Applicant's correspondence clearly set out the relevant authorities, the application of those authorities to the facts, and invited the Respondent to withdraw the Jurisdictional Objection within 7 days.

• [56] Second, the Jurisdictional Objection was ultimately determined by applying those authorities to the facts in an identical way to that set out by the Applicant in the correspondence.

• [57] Third, it was not the case that the Respondent contended the authorities cited by the Applicant were incorrect or were not relevant to the Jurisdictional Objection. Rather, the Respondent accepted that Burns v Aboriginal Legal Service is correct in that a dismissal cannot take effect until it is communicated to the employee.[25]

• [58] Accordingly, I am satisfied that the jurisdictional preconditions in s.375B have been met.

• [59] Section 376(2) provides the Commission with the power to make an order for costs against a representative only if it is satisfied that the representative 'encouraged' a person to start, continue or respond to the dispute when it should have been reasonably apparent that there were no reasonable prospects of success, or because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

• [60] In Mitry Lawyers v Banden[26], Wigney J summarised the principles relevant to the exercise of power to order costs against a lawyer (or representative) as follows:

1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.

1. Something which involves "unreasonable conduct" is required.

1. What constitutes unreasonable conduct will depend on the circumstances of the particular case.

1. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.

1. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.

1. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.

1. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.

• [61] In the matter before me, there is no evidence that the Respondent's lawyers caused the Applicant to incur costs because they encouraged the Respondent to start, continue, or respond to the dispute. Nor is there any evidence of an unreasonable act or omission of the Respondent's lawyers.

• [62] The Applicant's case goes no higher than a submission that the Respondent's lawyers did not withdraw the case. As stated in Mitry Lawyers v Banden, it requires more than simply instituting or maintaining a proceeding on behalf of a client, even a hopeless one, to invoke the jurisdiction to make a costs order against a lawyer.

• [63] It follows that the jurisdictional preconditions set out in s.376(2)(a) and (b) of the FW Act are not satisfied. Accordingly, there is no power to make an order for costs against the Respondent's lawyers. This aspect of the Costs Application is dismissed.

• [64] Being satisfied that the jurisdictional preconditions to make an order for costs set out in ss.611(2)(a) and (b) and s.375B have been met and having regard to all of the circumstances of this case, I consider it appropriate to exercise my discretion to make an order for costs against the Respondent.

• [65] The Costs Application included a schedule of costs incurred by the Applicant. On 8 September 2023, the Applicant filed an Amended Costs Application, which amended the schedule of costs to include two additional items relating to costs incurred in preparing the statement of Samantha Rumbel and the Submissions in support of the Costs Application. In accordance with s.586 of the FW, I allow the amendment.

• [66] The Amended Costs Application seeks the amount of $8,879.70, itemised as follows:

Taking instructions to oppose jurisdictional objections made by Respondent.

Letter drafted to the Respondent's solicitor outlining the current position of authorities and why the Application could not reasonably succeed.

Review of directions and orders of Commissioner Ryan.

Preparation of submissions for jurisdictional objection hearing.

Preparation of submissions for legal representation for jurisdictional objection hearing.

Attendance to file statement of Samantha Rumbel and submission.

Review of email from solicitor for Respondent, consider request for extension, obtain instructions from client and draft email in response.

Review orders from Fair Work Commission and consider new timetable.

Taking instructions from client regarding evidence in reply and consider same.

Review and consideration of submissions filed by the Respondent.

Preparation of Statement of Samantha Rumbel for purposes of costs application.

• [67] Section 377A of the FW Act provides as follows:

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC:

(a) is not limited to the items of expenditure appearing in the schedule; but

(b) if an item does appear in the schedule - must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

• [68] Although the Applicant was directed to identify the applicable item number in Schedule 3.1 of the fair Work Regulations 2009 that applies to each cost event claimed in Part 4 of the Amended Costs Application, there is no schedule of costs prescribed in relation to applications made pursuant to s.611 (in relation to an application under s.365) or s.375B.[27]

• [69] Therefore, the amount of any costs ordered is at my discretion. However, such discretion is to be exercised in a manner that is fair and just, and in doing so, I have had regard to Schedule 3.1.

• [70] Turning to the costs sought, I consider some of the amounts sought to be excessive taking into account the legal and factual issues in this case, the length of documents, and the duration of the proceedings before the Commission.

• [71] I will award costs against the Respondent as follows:

• Items 1, 2, 3, 8, 9, 10, 11 and 12: I will award costs as sought in the Amended Costs Application.

• Item 4: The statement is less than 2 pages long and is in chronological format with attached correspondence. I consider an amount of $450.00 is appropriate.

• Item 5: The outline of submissions is 3 pages long and is not complex. I consider an amount of $450.00 is appropriate.

• Item 6: Although the Applicant required the Commission's permission to be represented by a lawyer irrespective of whether the Jurisdictional Objection was raised, the directions required the parties to file short submissions on the issue of permission to be represented by a lawyer or paid agent. I consider an amount of $74.00 is appropriate.

• Item 7: This attendance involved filing by email a witness statement and submission document. I consider an amount of $56.00 is appropriate.

• Item 13: The legal and factual issues were set out in correspondence sent to the Respondent and in submission filed by the Applicant and were not complex. I do not consider a significant amount of preparation would have been required. The hearing of the jurisdictional objection went for less than 1 hour. I consider an amount of $750.00 is appropriate.

• Items 14, 15 and 16: The amount claimed is excessive taking into consideration the legal issues and the length of the submissions and statement. I consider the amount of $750.00 is appropriate.

• [72] The Respondent will be ordered to pay costs in the amount of $4,029.20 within 14 days of the date of this decision. An Order to that effect will be issued with this decision.

[1] Samantha Rumbel v Modern Motors Dungog Pty Limited [2023] FWC 1707 (Decision).

[4] Statement of Samantha Rumbel dated 8 September 2023 at [10], Annexure A.

[6] Lana Everett v Daniel Brendan Heaslip T/A Daniel Brendan Heaslip [2019] FWC 5985 at [15]- [18].

[7] [2014] FWCFB 1070 at [17].

[10] [2014] FWCFB 810.

[12] [2015] FWCFB 1956.

[14] [2011] FWAFB 4014.

[15] Jennifer Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd [2023] FWCFB 71 (Wood v Amigoss) at [51], [55] and [58]; Azad v Hammond Park Family Practice Pty Ltd [2022] FWCFB 110 at [9]; _Qantas Airways Ltd v Carte_r [2013] FWCFB 1811 at [20]- [23]; Roche v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga [2020] FWC 326 at [38]- [40];

[17] Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB 8162.

[18] Ibid at [16]; See also Baxter Healthcare Pty Ltd v Portelli [2017] FWCFB 3891 at [95].

[26] [2014] FCA 918 at [42].

[27] See s.377A of the FW Act and Regulation 3.04 of the Fair Work Regulations 2009.

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